Page:Harvard Law Review Volume 2.djvu/237

 EMPLOYERS' LIABILITY. 219

of any negUg^ence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage." ^

This provision, it will be seen, was copied almost verbatim from the Iowa Act of 1862 ; like its predecessor, it was at once assailed as unconstitutional, but with the same ill success.^ Not only is the act constitutional, but a contract in contravention of it has been held void.^

The statute gives to employees the same rights as those enjoyed by strangers. It gives the former, however, no greater rights. It does not " make the corporation responsible to them for the acts and conduct of agents and employees outside the scope of their duties, or chargeable with the knowledge of a notice to employees in such matters."*

In Atchison, Topeka, & Santa ¥i Railway Company v, Koehler, 37 Kas. 463, it was held that a man employed to work about the track and in the yard of the railroad company, injured by the negligence of a fellow-servant, came within the provisions of the act. The case of Union Pacific Railway Company v. Harris, 33 Kas. 416, is cited as authority for the decision. In that case a section-man who, with others, was engaged in unload- ing from a car rails to be used in the repair of the track, was injured by the carelessness of his co-employees, whereby a rail was thrown on his foot. He was held to be within the protection of the statute.

Wisconsin presents the curious example of a State which has attempted to change the doctrine of common employment by statutory provisions, and then abandoned the attempt and gone back to the old doctrine. Up to 1875 ^^^ common-law rule of employers' liability held sway.^ In that year a statute ® was passed making railroad companies liable for injuries to servants. The law, § 1816 R. S., 1878, is as follows : —

aigent or servant thereof by reason of the negligence of any other agent or ser-
 * ' Every railroad corporation shall be liable for all damages sustained by any

1 Compiled Laws of Kansas, 1885, § 5204.

^ Missouri Pacific R. Co. v, Haley, 25 Kas. 35.

• Kansas Pacific R. Co. v. Peavey, 29 Kas. 169. ^ Solomon R. Co. v, Jones, 30 Kas. 601, 609.

• Chamberlain v, M. & M. R. Co., 7 Wis. 425; Anderson v, M. & St. P. Ry. Co., 37 Wis. 321.

• Laws of 1875, chap. 173.