a like number of persons to cut the timber on a strip of equal length alongside such right of way. If one of each set of employes shall be injured by the negligence of a co-employe, and the railroad employe can under the statute maintain an action against his employer and the other cannot, then it is clear that the law does not apply upon the same terms to all in the same situation.' The Legislature might intend to make such a difference, but it would require unmistakable terms to make us think so. We do not find such to be the character of the terms used in this statute. That language is rather indicative that it was intended to confine its operation to the case of employes engaged in operating a railroad, and necessarily exposed to the hazards attending that business, and not to take in the case of all employes of a railroad company, without regard to the kind of work in which they are engaged. No other reason can be given for excepting in the proviso 'employes while engaged in the construction of a new road, or part thereof, not open to public travel or use,' though some of the dangers of that business may be in some degree similar to those of operating a road after it is open to public travel and use; that is, when it is operated. The terms of the proviso go far to show an intent to limit the effect of the Act to companies operating railroads, and in that part of their business. The deceased, not being employed in operating the railroad, did not come within the rule established by the Act."

§ 105. Mississippi.—

Every railroad company shall be liable for all damages which may be sustained by any person in consequence of the neglect or mismanagement of any of their agents, engineers or clerks, or for the mismanagement of their engines; but for injury to any passenger upon any freight train not being intended for both passengers and freight,

such company shall not be liable except for the gross negligence of its servants."1

This statute, it will be seen does not entirely abrogate the fellow-servant rule. It has been held that a brakeman on one train of a railroad company is the fellow-servant of the employes operating another train of the same company, and cannot recover for injuries caused by the negligence of the employes operating such other train.o

By imposing on a railroad company the duty of exercising towards its servants, the extreme care which it owes to its passengers, this statute carries its liability beyond that imposed by the statutes of any other state or territory. The Act reads as follows: "That in every case the liability of the corporation to a servant or employe acting under the orders of his superior shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employe not appointed 'or controlled by him, as if such servant or employe were a passenger.'

$107. Rhode Island.

The Rhode Island Act embraces only the cases of common carriers. It reads as follows: "If the life of any person, being a passenger in any stagecoach, or other conveyance, when used by common carriers, or the life of any person, whether a passenger or not, in the care of proprietors of, or common carriers by means of, railroads or steamboats, or the life of any person crossing upon a public highway with reasonable care, shall be lost by the reason of the negligence or carelessness of such common carriers, pro1. Revised Code of 1880, p. 306, § 1054.

2. McMaster v. Illinois Cent. R. Co., (Miss.) 4 So. Rep. 59, and see Chicago, etc., R. Co. v. Doyle, 60

Miss. 977; s. c., 8 Am. & Eng. R. R.
Cas. 171.

3. Rev. Stat. 1879, p. 471, § 318; enacted in 1873.

prietor or proprietors, or by the unfitness or negligence or carelessness of their servants or agents, in this state, such common carriers, proprietor or proprietors, shall be liable to damages for the injury caused by the loss of life of such person, to be recovered by action of the case, for the benefit of the husband or widow and next of kin of the deceased person, one-half thereof to go to the husband or widow, and one-half thereof to the children of the deceased." The Supreme Court of this state has held that the Act applies generally to all common carriers, whether by rail, steamboat, or coach. It extends to carriers by water, as well as by land.2

§ 108. Wisconsin.—

In Wisconsin we find the only state which, after abrogating the common law rule, has returned to it again. The following Act was passed in 1875, and, under the pressure brought to bear by the railways, was repealed in 1880:3

"Every railroad corporation shall be liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other servant or agent thereof, without contributory negligence on his part, when sustained within this state, or when such agent or servant is a resident of, and his contract of employment was made in this state; and no contract, rule or regulation between any such corporation and any agent or servant shall impair or diminish such liability."4

Under this Act it has been held that in an action against a railway company for injuries to an employe, where the whole evidence shows beyond dispute that the sole cause of the injuries was the use of one bolt of insufficient length in fastening a slat of the ladder of a freight car, together with the somewhat decayed condition of the wood at the 1. Pub. Stats. 1882, p. 553, chap. 204, § 15.

4. Laws of 1875, approved March 4; Rev. Stat. § 1816; Gumz v. Chi

2. Chase v. American Steamboat cago, etc., R. Co., 52 Wis. 672; s. c., Co., 10 R. I. 79.

3. Laws 1880, chap. 232.

5 Am. & Eng. R. R. Cas. 583.

place of such bolt, and that there was no external indication of these defects, and the person injured had been frequently in charge of the same car and in the habit of using the same ladder-there was no error in directing a nonsuit. The Act was held to be constitutional soon after adoption and not to be limited to those employed in operating railroads.2

109. Wyoming.—

"An Act to Protect Railroad Employes who are Injured while Performing their Duty," was passed by the Legislature of Territory of Wyoming in 1869. It reads as follows: "Any person in the employment of any railroad company in this Territory, who may be killed by any locomotive, car, or other rolling stock, whether in the performance of his duty or otherwise, his widow or heirs may have the same right of action for damages against such company as if said person so killed were not in the employ of said company; any agreement he may have made, whether verbal or written, to hold such company harmless or free from an action for damages in the event of such killing, shall be null and void, and shall not be admitted as testimony in behalf of said company in any action for damages which may be brought against them; and any person in the employ of said company who may be injured by any locomotive, car, or other rolling stock of said company, or by other property of said company, shall have his action for damages against said company the same as if he were not in the employ of said company; and no agreement to the contrary shall be admitted as testimony in behalf of said company."

SECT. 2. "This Act shall take effect from and after its passage.

1. Ballou v. Chicago, etc., R. Co.,

54 Wis. 257.

3. Comp. Laws, Wyoming (1876) p. 512, chap. 97, § 1. Approved De

2. Ditherner v. Chicago, etc., R. cember 7, 1869. Co., 47 Wis. 138.

The territorial court of last resort has not, in the twenty years that have elapsed since its passage, been called upon to construe this Act.

§ 110. Statutes of Other States not Affecting the Rule.

The broad provisions of the statutes of Maine and Missouri in regard to liability for death caused by negligence were at one time supposed to refer to the case of injuries received from the negligence of fellow-servants. It has now been decided, however, that they have no such application.1 And the same is true of the Colorado Act.2