Page:Harvard Law Review Volume 2.djvu/235

 EMPLOYERS' LIABILITY, 217

taining such damage." Objection was at once made to the act as unconstitutional ; but the objection was overruled by the court in McAunich v. Mississippi and Missouri Railroad Company, 20 la.

338.^

Under this statute the court has held, in Hunt v. Chicago and North Western Railroad Company, 26 la. 363, that the liability of the company was measured by a difEerent standard of negli- gence from that applied in cases of injury to passengers. While extraordinary care and caution are required with respect to passengers, only ordinary care is due to the employee. Wright, J., dissented on the ground that the same rule should be applied to both passenger and employee.

The original law of 1862, twice amended (by ch. 121, 13 G. A., and ch. 65, 14 G. A.), was incorporated into the Code of 1880, vol. i-» § 1307* where it now stands in the following form : —

" Every corporation operating a railway shall be liable for all damages sus- tained by any person, including employees of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employees of the corporation, and in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers, or other employees when such wrongs are in any manner connected with the use and operation of any rail- way on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding."

This statute has given rise to much litigation. The clause limiting the liability of the company to employees engaged in operating a railway has been strictly construed.. It has been held, for instance, that an employee whose duties consisted in operating the turn-tables, opening the doors of the engine-house, and shovelling ofif the snow, was not within the statute as operating a railway. Hence to him the common-law rule applied, pre- venting a recovery for an injury sufiEered through the negligence of a fellow-servant.^

The same is true of a mechanic in a machine-shop of the com- pany ; ^ of one whose duty it was to repair cars standing on a side- track, and occasionally to ride on the road to make such repairs ; *

Central Iowa Ry. Co., 64 la. 603.
 * See also Deppc v. The Chicago, R. !.,& P. R.R. Co., 36, la. 52, and Bucklew v. The

s Malone v. B., C. R., & N. R. Co., 65 la. 417. » Potter ». C, R. I., & P. R. Co., 46 la. 399.


 * Foley V. C, R. I. & P. R. Co., 64 la. 644.