Page:Harvard Law Review Volume 2.djvu/236

218 of track repairers; of employees engaged in hoisting coal into a coal-house, or loading a car; of one who kept the appliances in a round-house in proper condition. The statute does apply, however, and give relief to one engaged in working on a bridge and occasionally required to ride on the train in the course of his employment; to a section hand; to one engaged in shovelling gravel from a gravel train; to one operating a dirt train; to a detective walking on the track looking for obstructions; and to foreman of gang of workmen employed in the construction and repair of bridges on the road.

Whether or not the character of the plaintiff's employment brings him within the provision of the code is a question of fact for the jury.

A receiver comes within the meaning of the statute as a per- son managing a railway. Although he is not liable personally, a judgment against him could be satisfied out of the funds in his hands.

It should be borne in mind that in all these cases coming up under the statute, if the employee is guilty of contributory negligence he has no remedy. The burden is on the plaintiff to show that he was in the exercise of due care. It may be inferred, however, from the circumstances of the case, without direct proof.

In Kansas the first attempt to modify the law was made in 1874, by the passage of chap. 93, § i, of the acts of that year. This act was subsequently incorporated into the Civil Code, now reading as follows:—

"Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of such company in consequence