of such portion of his wages, having precedence over any other assignment by him of his wages, or of any claim upon them on account of liabilities incurred by him, subject, however, to the assignment contained in his application for membership in the relief feature. A borrower who earns no wages in any month, or who has left the service, must, at his own risk, make his monthly payments to the treasurer of the company, and should at the same time notify the superintendent. He must also keep the superintendent advised of his address. If a borrower fail to make the monthly payments required by these regulations so that 3 such payments are in arrears and unpaid, or if he make default in the payment of any premium for fire or insurance, or any tax, assessment, or charge required to be paid by him under these regulations, for a period of 30 days after the same becomes due and payable, the whole amount of the principal sum and interest of his indebtedness shall become and be due and collectible at the option of the committee, and the superintendent shall, if so directed by the committee, take all steps necessary to sell and realize on the property held as security for said indebtedness. Deductions from wages for the monthly payments of borrowers must be entered on the pay rolls opposite the names of the borrowers, respectively, in a separate column, and designated at the foot of the roll as deductions to the credit of the savings feature. The fact that a borrower has left the service must be noted on the pay roll on which the last payment to him was made. From the above it will be seen that any employee of the company, his wife, child, father, or mother, or the beneficiary of any deceased employee is permitted to deposit at any designated depositary any sum not less than $1 and not more than $100 in any 1 day. On any sums of $5 and upward so on deposit not less than 3 calendar months interest is paid at the rate of 4 per cent per annum from the 1st day of the month succeeding that in which the deposit was made. In addition to this interest, the committee may at the end of any fiscal year award depositors dividends from the net earnings of the savings feature proportionate to the interest credited to their respective accounts for that year. No interest is allowed on any account after the expiration of 10 years from the date of the last credit entered, exclusive of entries of interest. Depositors can withdraw money by forwarding an order on the superintendent, on receipt of which a check for the amount will be forwarded. The rules provide that 30 days' notice is necessary to withdraw a sum exceeding one-fourth of a person's entire deposit, but this rule has never been enforced. A depositor leaving the service of the company and having a balance of not less than $50 to his credit is permitted to retain his privileges as a depositor. The company assumes the financial obligation of guaranteeing the stability of this fund and the payment of interest at 4 per cent. The practical operation of the fund began August 1, 1892. From that date up to September 30, 1893, $82,555.35 were deposited and $48,440.63 loaned. During the whole history of this fund 7,569 accounts have been opened, and 3,204 are still in force. The report for the last fiscal year ending June 30, 1900, showed the amount of deposits as $569,152.12 and the amount loaned during the year $357,138.44. The total deposits since the establishment of this fund have been $4,179,940.55, and the total amount loaned has been $2,967,131.92. The amount now due depositors is $1,518,328.08, and the outstanding loans amount to $990,202.53. The expenses of operating the savings fund are paid from its funds, and from the report for the fiscal year ending June 30, 1900, there was written among liabilities, profit and loss. $43,783.59. The moneys received from depositors are invested in firstmortgage loans to employees of the company upon terms specified in the regulations as quoted above. These loans are made at the rate of 6 per cent per annum, charged from the 1st day of the month in which the loan is consummated, and are repaid at the rate of 1 per cent monthly, or $1.50 per month on each $100 borrowed. The total amount loaned to employees has been expended in building 1,268 houses, buying 1,376 houses, improving 320 houses already owned, and releasing liens on 772 houses. Borrowers are required to keep the property taken as security fully insured against fire in a company approved by the superintendent or designated by the committee. The popularity of the loan feature among employees is due to the fact that the conditions are so much more favorable than those the building associations or other institutions loaning money on weekly or monthly payments offer. The success of the business conducted by this saving and loan department or fund may be judged from the fact that at the close of the fiscal year ending June 30 an extra dividend of 14 per cent was declared to all depositors in the savings feature having accounts bearing interest at that date. This made the rate received 5 per cent per annum. 15. EMPLOYER'S LIABILITY: COMMON-LAW AND STATUTORY LIABILITY OF CORPORATIONS FOR INJURIES TO THEIR EMPLOYEES; THE FELLOW-SERVANT PRINCIPLE IN LEGISLATION AND COURT DECISIONS. I. Historical retrospect. The law is and has been for ages that a person is liable for all the natural consequences of his wrongful acts. Questions of liability, in this connection, most often arise in cases involving negligence, "Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under existing circumstances would not have done." This explanation of negligence was given by Swayne, J., in Railroad Company v. Jones.1 The law is also firmly settled that one is responsible for the acts of his agent or his servant when the latter is acting within the scope of his employment. This is the common law of England and of this country. The rule is expressed in this terse phrase "Qui facit per alium, facit per se. What one does by another he does himself. It goes without saying that where the corporation is the employer and some one is injured by the act of his agent, the corporation is responsible: the corporation in this regard being no different from an individual or a partnership. It follows that where A is riding on a coach or wagon belonging to B and driven by C, and A is injured because C drove negligently, A can hold C liable, because C was guilty of a wrong. But it is evident, from common experience, that this remedy will not avail A, as the great probability is that C is not worth anything. C, however, being B's agent, A can hold B liable for this injury, and the law will say to B, "You have engaged C to drive your wagon. A was injured by negligence. You must answer for his wrong. This liability does not depend upon whether B was negligent in choosing an incompetent driver. The mere fact of agency is sufficient. This, then, is the state of the law. The reason for the rule is not far to seek. Were the law otherwise, life and limb would not be protected in the present highly developed society, where by far the greater part of the industries are conducted not by the proprietors, but by their servants, who for the most part are irresponsible persons. It might be stated, however, in order to make the matter perfectly clear, that where the injury for which one complains was caused either in whole or in any degree by negligence of the one injured he can not hold anybody liable, neither the master nor the servant, as he has only himself to blame for the injury. Any negligence of the injured party which is contributed to is called contributory negligence. This was in mere outline the law with reference to the liability of the master for the act of his servant, when the case of Priestly v. Fowler was decided. In this case the servant who was in the employ of a butcher, sued his master for injuries received, because the master directed him to ride on a van belonging to the master, which was overloaded and not in proper state of repairs. In consequence of this the van broke down, and the plaintiff fell and was injured. The court held that he could not recover. The reason for the decision is not clear, being perhaps based on the fact of contributory negligence. The language of the court is: The plaintiff must have known as well as his master and probably better whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely." This case is cited because it is probably the first case recorded where the servant assumed the right to sue his master and is generally considered the first case that lays down the rule known as the "fellow servant rule" and which will be more fully explained presently. The first case which squarely lays down the rule of law that a master is not liable to his servant for the negligence of a fellow servant, briefly known as the fellow servant rule, is Murray v. S. C. R. R. Co. In this case the plaintiff, a fireman employed by a railroad company, was injured through the negligence of an engineer of the same train. The court decided that the company was not liable. The ground for the decision seems to be, inter alia, that the plaintiff knew that others need to be engaged to conduct a train on which he was and he had equal opportunity with the company to inform himself about the appointments in connection with this train (p. 402). But the fountain head of all subsequent law interpreting the fellow-servant rule is Farwell v. Boston, etc., Railroad Company, decided in 1849, Chief Justice Shaw delivering the opinion of the court. In this case the plaintiff, an engineer in the employ of a railroad company, was injured by the negligence of the switchman, whose character he knew, in leaving a switch open. The court decided that the plaintiff could not recover from the railroad company for the injuries received by him on account of the negligence of his fellow-servant. In the opinion the court said: The general rule is that he who engages in the employment of another * * * in the performance of specific duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption the compensation is adjusted accordingly, and we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are 1 95 U. S., 439, 1877. 23 M. N. W. 1, 1837, Lord Abinger, C. B. 31 McMullan (S. C.) 385, 1838. in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard as the master." It is to be noted that in the first case cited, Fowler v. Priestly, the servant was in the employ of a butcher, who likely would have at the highest 1 or 2 servants only, and he was likely to know the character of the men who, together with himself, were employed by the common master. Moreover, all the illustrations drawn by the judge who decided that case were from among domestic servants who were thoroughly familiar with each other and who probably could take better precaution aginst their carelessness than the master could. In the Murray case the plaintiff who was injured chose the engineer who according to his personal knowledge was efficient. They were both on the same train and there may be some reason in saying that when the plaintiff chose to go on that train he could have informed himself on the appointment and insisted on remedy of any defect, or refuse to go. In the last case decided by Chief Justice Shaw, while the plaintiff knew the switchman through whose neglect he was injured, he was in a different department of the work, running a train, and certainly could not investigate into all departments of the railway service of the company in order to satisfy himself that the appointments were all safe and satisfactory. Subsequently the fellow-servant rule was so extended as to include all injuries received by employees of railroads because of the negligence of other employees of the same company, irrespective of the department or the grade of service or employment of the employees. * The rule of law was thus stated by Field, J., in Chicago, etc., Railroad Company v. Ross: "The general liability of a railroad company for injuries caused by the negligence of its servants to passengers and others not in its service is conceded. It covers all injuries to which they do not contribute. But where injuries befall a servant in its employ a different principle applies. Having been engaged for the performance of the specific services, he takes upon himself the ordinary risks incident thereto." (p. 383.) Where the service to be rendered requires for its performance the employment of several persons, as in the movement of railway trains, there is necessarily incident to the service of each the risks that the others may fail in the vigilance and caution essential to his safety." In Holden v. Fitchburg Railroad," Gray, C. J., says: "It is well settled in this Commonwealth and in Great Britain that the rule of law that a servant can not maintain an action against his master for an injury caused by the fault or negligence of a fellow-servant, is not confined to the case of two servants working in company or having opportunity to control or influence the conduct of each other, but extends to every case in which the two, deriving their authority and their compensation from the same source, are engaged in the same business, though in different departments of duty." Perhaps the furthest limit of the fellow-servant rule extant is a case decided in Massachusetts (Gillshannon v. Stony Brook Ry. Co., 10 Cush., 228, 1852), in which the plaintiff, who was in the employ of the defendant railroad company, was riding to and from work on one of its trains, and while riding was injured through an accident caused by the negligence of the engineer. The court held that the injury was caused by a fellow employee and that the plaintiff could not recover. In at least one State the statute has extended the fellow-servant rule. In Pennsylvania the act of April 4, 1868,3 provides that when any person shall sustain personal injuries or loss of life while lawfully engaged or employed on or about the roads. works, depots and premises of a railroad company, or in or about any train or car therein, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee; provided that this act shall not apply to passengers. This then being the state of the law and the severity of the rule being felt in some instances, an exception began to grow up to the working of the rule. The exception is what has since become known as the "vice principal rule." The court in Prevost v. Citizens' Ice, etc., Company, speaking through Mitchell, J., thus defined a vice principal: " A vice principal for whose negligence an employer will be liable to other employees must be either, first, one in whom the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not mere authority to superintend certain work or certain workmen, but control of the business or of a distinct branch of it, and exercising no discretion or oversight of his own; or, secondly, one to whom he delegates a duty of his own which is a direct, personal, and absolute obligation, from which nothing but performance 1112 U. S., 377,382 (1884). 3 P. L. 58. 1. 4 185 Pa., 617, 621 (1898). can relieve." We are more particularly interested with the first branch of this definition. This principle is illustrated by the great case of Chicago, M. & St. P. R. R. Co. v. Ross. In this case the plaintiff, an engineer, received injuries from a collision which occurred because of the negligence of the conductor who had charge of the train. The court held that the company was liable in damages to the plaintiff as he and the conductor were not fellow-servants. The court said: "There is in our judgment a clear distinction to be made in their relation to their common principal between servants of a corporation exercising no supervision over others engaged with them in the same employment and agents of the corporation clothed with the control and management of a distinct department in which their duty is entirely that of direction and superintendence. A conductor, having the entire control and management of a railway train, occupies a very different position from the brakeman, the porter, and other subordinates employed. He is, in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants." In Ohio and Kentucky the same result is arrived at on reasoning analogous to that of Mr. Justice Field in the Ross case. In New York the same result was reached in Breckner v. New York Central R. R. Co., where the court held that the negligence of the master mechanic of the company in employing incompetent men was negligence for which the company was liable. Moreover, the tendency illustrated in the Ross case and in decisions of a limited number of State courts was further illustrated by statutes passed in several of the Western States defining who are fellow-servants, so as to limit the operation of the fellow-servant rule. Thus in Ohio the act of April 2, 1890,3 provides that in an action for negligence against a railroad company for injury resulting from another employee thereof "every person in the employ of such company actually having power or authority to direct or control any other employee of such company is not the fellow servant, but superior of such other employee; also that every person in the employ of such company having charge or control of employees in any separate branch or department shall be held to be superior and not the fellow-servant of employees in any other branch or department, who have no power to direct or control in the branch or department in which they are employed. See also Texas laws of March 10, 1891, which contains practically the same provision as the first part of the act just cited. Unfortunately, the tendency thus indicated received a check from the Supreme Court of the United States, which, instead of following the doctrine of the Ross case, at first got around it and finally overruled it. In New England Railroad Company v. Conroy, B. L., 27; 20 Supreme Court Rep.,85 (1899), cited at length in Exhibit 4, p. 970 of this report, the court held that a conductor and a brakeman are fellow-servants and the latter can not recover from the company for injuries received because of the negligence of the former. This, then, in brief outline, is the condition of the law on this subject. To appreciate the importance of this question and how intimately it affects railroad employees, it is only necessary to state that on June 30, 1900, there were in the railway service in the United States 1,017.653 employees. During the year then ending 2,550 of these employees were killed and 39,643 injured in such service, or, of those employees, 1 out of every 399 was killed, and 1 out of every 26 was injured. The law, then, is that where a passenger or a third person is injured by the negligence of any one employed by the railroad company he can recover damages, in a certain measure compensatory of his injuries. Where such a person is killed, his representatives can recover from the company for the loss so incurred. But where the injured or deceased person happens to be an employee of the railroad company and was injured because of any negligence of a fellow employee, then the fellow-servant rule applies, and excludes compensatory damages to the injured, or damages to the representatives for loss of deceased parent or son. It is no wonder that the workingman looks upon this law as extremely harsh and unfavorable to him, savoring too much of the olden times when the workingman was considered a serf or slave of his master and could not expect any protection from the law made and interpreted by the master. The apologetic reasons for the existence of the fellow-servant rule satisfy no one but those who utter them. It is said that the employee assumes the risks of his employment. But the most reasonable interpretation of that rule was given by O'Neall, J., one of the dissenting judges in Murray v. S. C. R. R. Co.,' as follows: 1 112 U. S. 377, 390, 1884, Field, J. 22 Lans. 506, 1870. I C-VOL XVII-01 3 Laws, p. 149, sec. 3. -57 51 McMullan (S. C.), 385, (1841). “I admit here, once and for all, that the plaintiff, like any other servant, took as a consequence of his contract the usual and ordinary risks of his employment. What is meant by this? No more than that he could not claim for an injury. against which the ordinary prudence of his employer, their agent or himself could provide. Whenever negligence is made out the cause of injury, it does not result from the ordinary risks of employment." It is said, moreover, that there is a presumption of law that the employer regnlates the employee's compensation with these risks in view, including the risks of being injured by a fellow employee. While this reasoning may satisfy the lawver, who is used to deal with fictions in the law, it certainly can not satisfy the railroad brakeman who is injured, and by this reasoning is barred out of his recovery when he, as well as everyone connected with railroads-in fact, with any kind of employment-knows that this increase in wages commensurate with the increase in risk exists only in the imagination of the courts; and it is a matter of common experience that those engaged in the more hazardous departments of the railway service are underpaid rather than overpaid. As has been aptly said: "The men of foresight who are supposed to bargain for extra compensation in dangerous occupations are seldom found in such occupation at all; it is rather the men who are unable to find any other employment, let alone compel the employer to accede to their own terms." (Employer's liability in E. & A. N. Y., 1899, p. 676Then comes the reason of public policy. "It is assumed that the exemption operates as a stimulant to diligence and caution on the part of the servant for his own safety as well as that of his master. But it may be doubted whether the exemp tion has the effect thus claimed for it. We have never known parties more wiing to subject themselves to dangers of life or limb because, if losing the one, or suffering in the other, damages could be recovered by their representatives of themselves for the loss or injury. The dread of personal injury has always proved sufficient to bring into exercise the vigilance and activity of the servant." (Chicago, etc., v. Ross, 112 U.S., 379, 383, 1884.) If you add to the doubt thus raised by Justice Field the further fact that whenever the employer has been made responsible for injuries to his employee, suffered while using due diligence, through the negligence of a coemployee, the public and general convenience, to say nothing about the injured employee himself, has been better served. Why? Chiefly because the employer has been thus induced to exercise greater caution and dicretion in the selection of competent and faithful employees; obviously also to his own advantage in the lessening wear, tear, and waste, breakage and damage to his work, ways, or plant." On what then rests the public policy of exempting the employer in such a case when both on reason and experience the public, the employee, and the employer himself are better served by refusing him such an exemption? Finally, whatever reason there may be in saying, as the courts in Priestly r. Fowler say, that in case of domestic servants the injured party himself probably knew the capacity of his fellow-servant better than the master could have known. and so he could take better precaution for his safety than the master could have taken, and whatever reason there may be in saying that when two workmen work side by side on the bench and the injured person was in a position to control the action of the fellow-servant whose negligence caused his injury, that reason can not apply to the extended application of the fellow-servant rule as given in England, in Massachusetts, and in the Federal courts. To hold that the engineer or fireman of a train injured because of the neglect of the switchman in leaving open the switch in any modern large railroad employing thousands of men must suffer for the negligence of the switchman is extending the rule of fellow-servants beyond the shadow of a reason. II. Statutory modifications of the fellow-servant rule. Such is the condition of the law with reference to the unenviable position of the employees of railroad corporations. The fellow-servant rule" was not nearly so popular in the come munities as the wide extent of the existence of the rule might indicate. In some quarters it has been felt that this law is at best "bad policy." Especially was it unpopular among the working classes, and in particular those whom it affected to the greatest extent-the railroad men, the miners, and the factory hands. The decisions of the court having permanently engrafted the fellow-servant doctrine upon the common law, it was within the province of the legislatures to change the law by providing a substantial remedy to such employees as suffer under the unjust discrimination against them. The legislatures then turned their attention to this branch of the law, and a glance at this legislation will be taken. The legislature of Georgia as early as 1855 passed an act which is very simple and direct. It provides as follows: Rail |