sions must be very rare. To open the way for controversies as to whether the protection designated by the statute is or is not necessary or practicable in given places would lead to much litigation, which might result in the nullification of the very purpose of the statute. Such statutes are mandatory, and it is not for the mill owners or juries to say whether the requirements are wise or necessary." (Whelan v. Washington Lumber Co., 41 Wash. 153, 155, 83 Pac. 98, 99 (111 Am. St. Rep. 1006).)

The protection of the act extends only to the persons employed or laboring in the factory; that is, acting within the scope of some employment or labor. The servant must be in a place which he may properly occupy, his conduct must be within the proper sphere of his duties, and the failure to supply a safeguard, considered with reference to its purpose, must bear a true causal relation to the injury, although under the stringent provisions of the act it need not be the whole cause. The master may not, however, successfully evade the statute by attempting to narrow the scope of his servant's duty by rules or instructions. Thus, in this case, workmen were obliged to ascend the ladder to put the belt on the shaft pulley and to oil the shafting. The statute could not be nullified by an order to do this work only while the machinery was not in motion. The court submitted to the jury the question of Caspar's contributory negligence and the verdict acquitted him of fault. The defendants say that under the evidence he was culpably negligent as a matter of law. The plaintiff replies that contributory negligence is not a defense to an action founded upon the factory act. The question thus raised is one of interpretation. The statute is the very essence of simplicity, clear and emphatic in statement, absolutely free from ambiguity. "If any person employed or laboring in any manufacturing establishment shall be killed or injured in any case wherein the absence of any of the safeguards or precautions required by the act shall directly contribute to such death or injury," an action lies.

The common law already gave a right of action to some employees under some circumstances. If the master failed to exercise reasonable care to provide reasonable safeguards, and if the servant did not assume the risk and if he were not guilty of contributory negligence, then a liability existed. The sole purpose of the statute was to wipe out this narrow and conditional liability and substitute another. Words were duly chosen to that end which are insusceptible of misunderstanding. The word "any" is a term of indifference, and its repetition shows that it was used deliberately and emphatically-any person," "any manufacturing establishment," "any case," "any safeguards or precautions." Consequently distinctions can not be made by interpolating qualifications and conditions, whether in respect to persons and cases or in respect to places and safeguards; and to declare that the act means no more than that "any person who, at the time of injury, was himself in the exercise of due care," may maintain an action, is to amend the law and not to interpret it. Furthermore, technical legal terms from the law of personal injuries are employed. The subject of contributing causes of the injury sued for is specifically treated. No exception to liability is made when the workman's negligence contributes to the injury. The legislature having chosen not to impose such a condition upon recovery, the judiciary is powerless to do so.

The statute is a factory act and an employer's liability act combined. It bears internal evidence that the employer's liability acts of other States had been studied. They are usually drawn in favor of "an employee," and consequently are held to exclude employees of subcontractors. To meet this defect the protection of the act was extended not only to persons employed, but also to persons laboring in a manufacturing establishment. The staple employers' liability act, however, expressly limits its application to "an employee who at the time of the injury is in the exercise of due care.' (Acts Colo. 1893, c. 77; Acts Ind. 1893, c. 130; Laws Mass. 1887, c. 270; Laws N. Y. 1902, c. 600.) The omission of any such restriction from the Kansas law appears to have been deliberate and intentional.

It may be said that the letter of a statute should not prevail over its sense and spirit, that a literal interpretation rewards carelessness, and that the act ought to be construed in connection with the settled maxims and principles of the common law. Precisely the same arguments were made in McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, 3 L. R. A. (N. S.) 726, 115 Am. St. Rep. 233, and were refuted in the opinion by the chief justice. But what is the spirit of this statute? It is to stop the insufferable waste of human life and limb which has been the universal accompaniment of the conduct of manufacturing industries. The law is a police regulation adopted to reform the inhumanity of factory methods, and to prevent the casting into the world of dependent cripples and widows and orphans left without means of support. This purpose includes the reduction of the number of casualties to the careless as well as to the prudent. If the prescribed precautions be taken and the required safeguards be installed, killing and maiming will cease, or at least will be reduced to a minimum.

In order that the factory owner may understand the imperative character of the act it was necessary to provide some means of enforcing it. A criminal prosecution is a common method, but the legislature did not adopt it. Instead of this it provided a civil remedy in damages. The sanction was affixed for public purposes. In those cases in which want of care on the part of the employee contributes in some degree to his injury the public ends to be subserved would be defeated unless the negligent man were able to recover. Consequently the statute provides that an action may be maintained by an employee in any case in which the factory owner's neglect to obey the statute contributes to the injury.

In an action to recover the value of a cow killed by a railway company which had not fenced its track as the statute required, Judge Cooley said: "There still remains the question, however, whether the railway company could be held liable if the plaintiff himself was guilty of contributory negligence. Were this a common-law action it is clear that such contributory negligence would be a defense. (Citing cases.) But this is not a common-law action. It is an action given expressly by a statute, the purpose of which is not merely to compensate the owner of property destroyed for his loss, but to enforce against the railway company an obligation they owe to the public. The statute is a police regulation, adopted as much for the security of passengers as for the protection of property. (Citing cases.) And the decisions may almost be said to be uniform that in cases like the present, arising under such statutes, the mere negligence

of the plaintiff in the care of his property can constitute no defense. (Citing cases.) (Flint & Pere Marquette R. Co. v. Lull, 28 Mich. 510, 515.) Contributory negligence is not a defense to an action brought under the Kansas statute authorizing a recovery for stock killed in the operation of a railroad where the right of way is not fenced. (Railway Co. v. Paxton, 75 Kans. 197, 88 Pac. 1082.) The public policy to be promoted by fencing dangerous factory machinery is identical in every respect with that which requires the fencing of railroad tracks.

It is fair to presume that the natural instincts of persons to avoid mutilation, pain, and perhaps death will prevent any undue stimulation of carelessness through the influence of the statute, and the suggestion of such a result may be ignored along with the scarecrow arguments frequently advanced that litigation will be increased and capital driven from the State by effective factory acts. In any event, these were matters for the legislature to weigh against the enormities of the former system when adopting its policy. The common law affords little aid to the interpretation of this statute because, as already shown, it was intended to abrogate the common law and substitute a new and different duty, right, and remedy. "It is entirely clear, however, that where an absolute and specific duty to guard or fence dangerous machinery is imposed upon the master by statute, such new condition must, in a very material manner, affect the relations of the parties, and modify to a considerable extent their rights and duties as they existed at common law. And here a distinction is to be noted between statutes such as the employer's liability act (Acts 1893, p. 294, sections 7083-7087; Burns's Ann. St. 1901), which provide in general terms that the employer shall be liable for injuries to an employee where the injury is occasioned by reason of defects in the condition of ways, works, plant, tools, and machinery, etc., and statutes which require of the employer the performance of a specific duty, such as to guard or fence dangerous machinery. Statutes of the former class do little more than declare the rule of the common law. Statutes of the latter class impose specific obligations. A failure to comply with the requirements of the first may or may not be negligence. A violation of the second is an unlawful act or omission, a plain breach of a particular duty owing to the servant, and generally constitutes negligence per se." (Monteith v. Kokomo, etc., Co., 159 Ind. 149, 151, 64 N. E. 610 (58 L. R. A. 944).)

The common-law doctrines of reasonable care, assumption of risk, contributory negligence, and coservice took their rise at a time when shoes were made at the bench, the weaver had an apprentice or two, and the blacksmith a helper. Steam and electricity have revolutionized manufacturing industries so marvelously that no vestige of former conditions remains. But while the factory worker's environment has been completely changed, his common-law rights and remedies have remained unchanged. It has been well understood for a long time that there is no juristic or economic excuse for this state of affairs. The liberty of capital to conduct its own business in its own way does not include the right to inflict the cruelties which have invariably characterized industrial progress. The liberty of the wage-earner to contract for extra pay for extra hazard and to seek some other employment if he does not like his master's methods is a

myth, or, as has been said, "a heartless mockery." (Kilpatrick v. Grand Trunk R. R. Co., 74 Vt. 288, 52 Atl. 531, 93 Am. St. Rep. 887.) The man and the machine at which he works should be recognized as substantially one piece of mechanism, and mishaps to either ought to be repaired, and charged to the cost of maintenance. The courts can not abolish the old rules and adopt others which shall suit existing facts and remedy existing evils. That must be done by the legislature. But when tardy statutes are promulgated, the courts should interpret them as favorably as their terms will allow, and not proceed to shackle them with the discredited common-law manacles. Sometimes it is held that quite radical factory acts make no change in the law. Sometimes it is declared that their most remedial features must be strictly construed because they penalize the factory owner. More often than otherwise it is held that the precious doctrine of assumption of risk can not be affected unless, like the king, it be expressly named. It is usually taken for granted that a legislature could not think of permitting a negligent factory worker to recover, although the farmer may collect damages from a railroad company for killing the cow or mule which he negligently permits to run at large.

In a recent Indiana case the opinion reads: "It is a matter of common knowledge that, owing to the spirit of invention and the demands of business, the use of powerful, swiftly moving, and dangerous machinery in manufacturing establishments in this country has been constantly growing at an ever increasing rate for many years, and at the same time the casualty list from accidents resulting from the use of such machinery has been constantly swelling until at the date of the passage of this law it has reached alarming proportions. Both the title of the act, which declares it to be 'An act concerning labor and providing means for protecting the liberty, safety, and health of laborers,' etc., and the provisions of the law, clearly show that this condition of affairs was in the legislative mind in the enactment of this law, and was an evil sought to be remedied thereby. Its obvious purpose, among other things, was to reduce the hazard to those employed about dangerous machinery, to protect them from injury by accidental contact therewith, and it was evidently designed to protect the employee not only from unavoidable accidents, but from his own negligent and careless acts which might result in his injury from accidental contact with such dangerous machinery. Not that the law gives to the employee a new right or remedy against his employer for such injuries, or in anywise relieves him from his common-law duty to exercise reasonable care to protect himself. Its purpose is to prevent injury, not to give a right or remedy for its occurrence.' (Evansville Hoop, etc., Co. v. Bailey, 43 Ind. App. 153, 159, 84 N. E. 549, 551.)

The Indiana statute makes a violation of its requirements a misdemeanor punishable by fine for the first offense and by larger fines and by imprisonment for succeeding offenses. (Laws 1899, c. 142, sec. 25.) The Kansas statute depends for its enforcement upon the terror of suits for damages. It may be wise or unwise, but it is so framed. As the Indiana court perceived, the public humanitarian purpose is the same, although the employee be negligent. Therefore it may be concluded that the Kansas statute did intend to confer a new right and a new remedy.

It is not necessary to pursue the subject further. The court holds that mere contributory negligence is not a defense to an action founded upon the factory act.

One other matter should be noticed, although the affirmance of the judgment of the district court does not depend upon it. Section 6 of the act makes it sufficient, in order to establish liability, for the plaintiff to prove in the first instance that death or injury resulted in consequence of failure to provide the required safeguards, or that failure to provide such safeguards directly contributed to such death or injury. The plaintiff showed that the shafting was unguarded, and that as a direct result and consequence Caspar was killed. Under the statute the plaintiff was not required to go further and offer proof in the first instance that it was practicable to guard the shafting. The legislature was evidently moved by the fact that very often an injured employee is not competent to demonstrate the practicability of providing safeguards and may not be able to command the expert evidence necessary to do so. The accident may have wrecked the machine, or the factory owner may remove it or may deny him access to it. When the employee is killed, or witnesses are killed, the way to recovery is still further embarrassed. On the other hand, the factory owner always possesses the ability to show that additions in the direction of safety would destroy the efficiency of the appliance causing the injury, or would otherwise be impracticable.

In Henschell v. Railway Co. (78 Kans. 411, 96 Pac. 857) this section of the statute was not brought to the attention of the court, and its purpose and effect were not considered. In that case the plaintiff proved that he was injured by a type of machine which required the manipulation of unguarded cogs. Therefore it was said that he was bound to extricate himself from the predicament in which his own evidence placed him by showing how it was practicable to guard the cogs. Since the statute contemplates that ordinarily a plaintiff should not rest under such a burden, the third paragraph of the syllabus is overruled.

The judgment of the district court is affirmed.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-HAZARDS-CONSTRUCTION OF STATUTE- CONSTITUTIONALITY - CLASSIFICATION Louisville and Nashville Railroad Company v. Melton, Supreme Court of the United States, 30 Supreme Court Reporter, page 676.-Spencer Melton, a resident of Hopkins County, Ky., sued in the circuit court of that county to recover damages for an injury received by him while working for the company named. Melton was employed as a bridge carpenter, but was engaged at the time he received his injury in the construction of a frame foundation for a coal tipple near the company's track at Howell, Ind. The injury was caused by the breaking of a chain selected, as it was alleged, by the foreman, Melton being at the time engaged in carrying out the foreman's orders. The action was based on the employers' liability statute of Indiana, act of March 4, 1893, applicable to railroads operating in the State