Page:Harvard Law Review Volume 2.djvu/245

 BMPLOrBRS' LIABILirr.

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contract, express or implied, binding on the defendant ; and the injury must be received while rendering the service required by the particular employment or in obeying the order of a superior to which the employee is bound to conform. Injury received while doing other more hazardous service not pertaining to the employment, by way of accommodation, or self-assumed, is not sufficient. . . . The burden is on the plaintiff to prove a case within the provisions of the statute defining the liability of em- ployers." Consequently, where a night watchman at a station, accustomed to ride upon defendant's trains to a neighboring station for his meals, was injured, while so riding, by complying with the conductor's request to assist in making a coupling, it was held that there was no such employment as brakeman as ren- dered the company liable for the injury.

In Massachusetts, after an agitation of the subject for several years, an Employers' Liability Act was passed in 1887, entitled "An Act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees in their service." The provisions of the act are as follows : ^ —

" Where, after the passage of this act, personal injury is caused to an em- ployee who is himself in the exercise of due care and diligence at the time —

(i.) By reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer, which arose from, or had not been discovered or remedied owing to, the negli- gence of the employer or of any person in the service of the employer and intrusted by him with the doty of seeing that the ways, works, or machin- ery were in proper condition; or

(2.) By reason of the negligence of any person in the service of the employer, intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence.

(3.) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, switch, locomotive engine, or train upon a railroad, the employee, or in case the injury results in death the legal representatives of such employee, shall have the same right of compensation and remedies against the employer as if the em- ployee had not been an employee, nor in the service of the employer, nor engaged in its work."

This act, it will be noticed, resembles closely the provisions made in Alabama, and consequently in Great Britain. The Massa- chusetts law, however, goes farther than that of the other State

1 Act! of 1887, chap. 270.