5. When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway.

But the master or employer is not liable under this section, if the servant or employe knew the defect or negligence causing the injury, and failed in a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master or employer, unless he was aware that the master or employer, or such superior, already knew of such defect or negligence; nor is the master or employer liable under sub-division 1, unless the defect therein mentioned arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant, were in proper condition.2

§ 2591. Personal Representative may Sue if the Injury Results in Death.—If such injury results in the death of the servant or employe, his personal representative is entitled the end of the trestle being ap- v. Bradford (Ala. 1889), 6 So. Rep. proached by the train, as required by the rules of the company relating to signals. Columbus & W. R. Co. v. Bridges (Ala. 1889) 5 So. Rep. 864.

1. An employer knowing of a defect or negligence cannot set up that the employe, by continuing in the work, has thereby waived his right to sue for injuries received in such employment. Mobile & B. R. Co. v. Holborn (Ala. 1888), 4 So. Rep. 146. The absence of contributory negligence need not be set out in the complaint. Columbus, etc., R. Co.

90.

2. "This provision manifestly relates, not to defensive matter, but to the negligence of the defendant, and facts would probably have to be averred in the complaint, if drawn under the first clause of the section, which would show that the defect causing the injury was within these limitations. As this point does not arise in the case at bar, however, it is not decided." Columbus, etc., R. Co. v. Bradford (Ala. 1888), 6 So. Rep. 90.

to maintain an action therefor, and the damages recovered are not subject to the payment of debts or liabilities, but shall be distributed according to the statute of distributions.1

2592. Damages Exempt.-Damages recovered by the servant or employe, of or from the master or employer, are not subject to the payment of debts, or any legal liabilities incurred by him.

§ 2593. Liability of Personal Representative and Sureties. The personal representative and sureties on his bond are liable to the parties in interest for the due and legal distribution of all damages recovered by such representative under section 2588, or section 2589, or section 2591, and are subject to all remedies, which may be pursued against such representative and sureties for the due administration of personal assets.

This Act being in derogation of the common law, the Supreme Court of Alabama holds that the inference is that the terms of the Act clearly import the changes intended, and their operation will not be enlarged by construction further than may be necessary to effectuate the nearest ends. The Court say: "Notwithstanding, a narrow and restrictive view of the Act should not be taken. In its construction the Court should consider its objects, have regard to the intentions of the Legislature, and take a broad view of its provisions, commensurate with the proposed purposes. The doctrine that prevailed prior to its passage had been carried to an extent which met with disfavor; and the tendency of the legislation has been in many of the States to abrogate as to particular corporations, or to modify as to all masters or employers, the rules which had governed their non-liability. Our statute,

1. Evidence that deceased had a disease likely to shorten life is admissible, since the continuance of life constitutes an element of dam

age.

Columbus & W. R. Cò. v. Bridges (Ala. 1889), 5 So. Rep. 864. 2. Mobile & B. R. Co. v. Holden, 4 So. Rep. 146.

as far as it goes, is a substantial copy of the English Act, entitled the 'Employers' Liability Act'; some of the provisions of which had previously received a judicial construction, Its enactment by the Legislature in substantially the same language is persuasive of a legislative adoption of that construction."

§ 100. Georgia.—

The first State to make any changes in the common law doctrine of co-service was Georgia. This is rather remarkable in view of the fact that at the time the law was amended, 1855, the State was largely agricultural, railroads were exceedingly few, and manufacturing enterprises almost unknown. However, in the year mentioned the Legislature passed the following Acts which have been incorporated into the Code of 1873.

§ 2083. "Railroad companies are common carriers, and liable as such. As such companies necessarily have many employes who cannot possibly control those who should exercise care and diligence in the running of trains, such companies shall be liable to such employes as to passengers for injuries arising from the want of such care and diligence."

3036. "If the person injured is himself an employe of the company, and the damage as caused by another employe and without fault or negligence on the part of the person injured,1 his employment by the company shall be no bar to the recovery."

"This means, clearly," say the Supreme Court,2 "if the

1. As to burden of proving or disproving contributory negligence under this Act, see Campbell v. Atlanta, etc. R. Co., 52 Ga. 488; Thompson v. Central R. & B. Co., 54 Ga. 509; Central R. & B. Co. v. Kelly, 58 Ga. 107. In Savannah, etc., R. Co. v. Barber, 71 Ga. 644, it was held that a charge to the effect that the

burden is on the plaintiff to show not only himself blameless, but the defendant negligent, is erroneous. "The moment the plaintiff proves to the jury either, the legal presumption proves the other until rebutted, and the defendant must rebut that presumption."

2. Central R. Co. v. Mitchell, 63

damage was caused by another employe, and was not caused by the fault or negligence of the employe hurt, then he may recover. If he immediately or remotely, directly or indirectly, caused it, or any part of it, or contributed to it at all, then he cannot recover; but though he had been at fault about something wholly disconnected with the transaction, or was at the time at fault about a matter that had nothing to do with the catastrophe, then he may recover. And such is the law in all the books and all the cases bearing on the point. And it must be so. Suppose the man whose duty it is to light the lamps failed to do so and was at fault, and owing to a defective embankment the cars were wrecked and he injured, could he not recover when his failure to light the lamps had nothing upon earth to do with the catastrophe, and did not cause it or contribute a mite to it?"

It has been held that under section 2202 of the Code of this State, which provides that "the principal is not liable to one agent for injuries arising from the negligence or misconduct of other agents about the same business," an employe cannot recover against the master for injuries caused by a co-employe, though the latter was his superior. 1

§ 101. Iowa.

Seven years after the passage of the Georgia Act the State of Iowa changed the common law. In 1867 the following provisions were enacted:

Every corporation operating a railway shall be liable

Ga. 173; s. c., I Am. & Eng. R. R. first time made that the Act, if unCas. 145.

In Thompson v. Cent., etc., R. Co., 54 Ga. 509, the Supreme Court held that the statute was not limited to any class of employes. And in Georgia R. Co. v. Ivey, 73 Ga. 499, when asked to reconsider its former decision, and the point was for the

limited in its operation would be unconstitutional, the Court adhered to its former decision and held the law constitutional. See also Georgia R. & B. Co. v. Goldwire, 56 Ga. 196.

1. McGovern v. Columbus Mfg. Co. (Ga. 1888), 5 S. E Rep. 492.

for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employes of the corporation, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers, or other employes, when such wrongs are in any manner connected with the use and operation of any railroad on or about which they shall be employed; and no contract which restricts such liability shall be legal and binding."1

This change of the common law, it will be seen, extends no further than to employes engaged in the business of operating railroads, and not to all persons employed by the corporation without regard to their employment. The Legislature had in mind the fact that corporations owning and operating railways may engage in other business which may be within the scope of the objects of their organization, yet not at all, or very remotely, connected with the use of their roads. In such cases employes by whom such affairs are conducted acquire no rights under this Act. Their occupation does not expose them to the hazards incident to the use of railways. Accordingly, the labor of the courts has been to determine what employes are con

1. Rev. Code, 1880, Vol. I. p. 342. § 1307: Under the statute, prior to the passage of chap. 169, Laws of 1862, it was held, in harmony with the consent of common law authority, that the principal is not liable for damages, sustained by an employe for the negligence of a co-employe in the same general service, and that the 14th section of the Act, entitled An Act to Grant Railroad Companies the Right of Way, approved Jan. 18, 1853, did not change the general rule on the subject. (Sullivan v. The M. & M. R. Co., 11 Iowa, 421). After the Act of 1862 took

effect, it was held that while the 7th section thereof gave an employe of a railroad company a right to recover for injuries caused by the negligence of a co-employe, the liability was nevertheless measured by a different standard and rule, as to negligence, from what it is in case of injuries to passengers. While extraordinary care and caution are required with respect to passengers, ordinary care only is due to the employe. Note, Rev. Code, 1880, § 1307.

2. Schroeder v. Chicago, etc., R. Co., 41 Iowa, 344.