EMPLOYERS' LIABILITY-POISONOUS FUMES-DUTY OF EMPLOYER TO ELIMINATE Fritz v. Elk Tanning Co., Supreme Court of Pennsylvania (May 14, 1917), 101 Atlantic Reporter, page 958.-Norman A. Fritz was employed from October, 1911, to February, 1913, in the bleaching room of the tannery carried on by the company named. In this room were several vats containing fluids used in bleaching, one being a warm solution of sulphuric acid. His duties required him to be near the vats a large part of the time, and at certain times, when the acid was put in or renewed, or the hides dipped in it, steam or fog arose and enveloped the employee. He developed symptoms of illness six weeks before he quit work, but was assured by the superintendent that there were no injurious fumes. As to the disability which the employee suffered from some cause, the court, speaking through Judge Walling, says:

When plaintiff began this work, he was robust, 26 years of age, and weighed 195 pounds; when he quit he was a physical wreck, and for 16 months thereafter walked upon crutches, and much of that time was confined to the house, and has not since been able to do any work. At the time of the trial in 1916 he could walk with the assistance of a cane, and weighed 140 pounds, and seemed to be permanently disabled.

The testimony of physicians for the plaintiff is reviewed, their opinions being very strongly to the effect that sulphuric acid poisoning could and did result from the constant inhaling of the fumes. Expert testimony equally positive is also summarized in favor of the contention of the company that such poisoning was not the cause of the illness. The court then expressed its view that the judgment should stand, the concluding portion of the opinion for the most part being as follows:

And

Where seemingly credible evidence tends directly to establish the facts upon which defendant's liability depends, a verdict based thereon is not the result of guesswork, although such evidence is strongly contradicted by that submitted for the defense. where, as here, a plaintiff's case is supported by positive and circumstantial evidence, and also by expert opinion, it must be submitted to the jury, notwithstanding the strength of the opposing proofs. In such case the remedy, if the verdict be against the weight of the evidence, is a new trial, which was not here sought. The fact that no case like this has come within the knowledge or information of any witness called, while strongly persuasive, is not conclusive against the plaintiff.

As the case was submitted, the verdict implies a finding by the jury, not only that the fumes were poisonous, but that such fact was or should have been known by the defendant, which was the common-law rule; but under section 11 of the act of May 2, 1905 (P. L. 352), it was defendant's duty to know the character of the fumes and gases arising in its bleachroom, and, if poisonous, to provide for their elimination by exhaust fans or other sufficient devices. As no attempt

was made to comply with the statute, and no claim that it could not have been done, if the fumes were poisonous, and plaintiff was injured thereby, without negligence on his part, he was entitled to recover as the provisions of the statute are mandatory. [Cases cited.] The fact that the plaintiff, under the assurance of the superintendent, continued at his work, did not as matter of law charge him with contributory negligence.

EMPLOYERS' LIABILITY-PROXIMATE CAUSE OF DEATH-PNEUMONIA RESULTING FROM BURNS AND RECUMBENT POSITION-Sterling Anthracite Co. v. Strope, Supreme Court of Arkansas (Oct. 8, 1917), 197 Southwestern Reporter, page 858.-Fred Strope was injured by an explosion of gas in the mine of the company named on February 18, 1916, and died 11 days later. On the trial of the suit of his administratrix against the company for damages, there was evidence on her behalf that the fire boss, after his required inspection on the morning of the day of the injury, had reported the working place of Strope to be unsafe, but had marked "O. K." on the board used for that purpose; but for the defense evidence was introduced that a mark was made to indicate that the place was found to be dangerous. When the employee reached the working place and lighted his miner's lamp the explosion occurred. The court stated that since there was substantial evidence of negligence, it could not disturb the jury's verdict, which had been in favor of the plaintiff.

Another question was whether the injury could be considered as the proximate cause of death, which resulted directly from pneumonia. The burns received were about the chest, shoulders, face, and arms. The attending physician testified that in his opinion the pneumonia resulted from the burns and the recumbent position necessitated by the injuries. It was held that there was justification also for the jury's finding on this point. Specific instructions to the jury relating to both matters, which were objected to, were held to have been proper, and the judgment for the plaintiff was affirmed.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-FEDERAL STATUTE INTERSTATE COMMERCE-FREIGHT CONDUCTOR ON RETURN TRIP AFTER MOVING INTERSTATE SHIPMENT-Illinois Central Railroad Co. v. Peery, Supreme Court of the United States (Dec. 18, 1916), 37 Supreme Court Reporter, page 122.-Robert II. Peery was injured in a rear-end collision while in the performance of his duties as a freight conductor, and sued the company named, his employer, action being brought under the Federal law, employment in interstate commerce being alleged. Judgment in his favor in the Supreme Court

of Minnesota was reversed on this appeal, the Federal law being held inapplicable. Peery's run was from Paducah south to Fulton, both points being in the State of Kentucky. The train out generally, and on the day in question, had interstate goods on board, but the return trip carried none, and it was on the return that the injury complained of was received. The court held that the two trips were separate movements, "in opposite directions, with different trains." Conceding that the greater probability of getting traffic going south was the chief reason for establishing the run, it was held that this could not dominate the return to the extent of fixing its character as interstate when there was no traffic of that nature being carried.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-FEDERAL STATUTEINTERSTATE COMMERCE-GATEMAN-Southern Pacific Co. v. Industrial Accident Commission of California, Supreme Court of California (Dec. 14, 1916), 161 Pacific Reporter, page 1139.-An award of compensation was made by the California Industrial Accident Commission to Jessie L. Rolfe on account of the death of her husband, Thomas C. Rolfe, in the employ of the railroad company named. The company petitioned for review on the ground that the employee was engaged in interstate commerce, and that the remedy of his widow was provided by the Federal Employers' Liability Act. Rolfe was a crossing gateman at a point where both interstate and intrastate trains passed over the track. As an intrastate train was about to pass and he had closed one of the gates, he discovered that a horse and wagon had approached so near to the track that he could not close the other gate without striking the horse or the wagon, and he started to cross the track to back the horse away, was struck by the train, and killed. The decision was that this was sufficiently related to interstate commerce so that the Federal act applied, and the compensation award was annulled. Judge Angellotti, in rendering the opinion, called attention to decisions to the effect that a track used indiscriminately for both kinds of traffic is an instrumentality of interstate commerce, and that those engaged in keeping it in repair or in suitable condition for use are engaged in such commerce, and so also as to persons removing obstructions from the track.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-FEDERAL STATUTE— INTERSTATE COMMERCE-JACKING UP WRECKED CAR-Southern Railway Co. v. Puckett, Supreme Court of the United States (June 11, 1917), 37 Supreme Court Reporter, page 703.-H. E. Puckett, an employee of the company named, was injured in August, 1911, and

brought action under the Federal Employers' Liability Act against the company. At the time of injury he was engaged in carrying blocks to jack up a wrecked car, the purpose being to release another employee who was pinned down by the car, and to assist in clearing away the wreck. He stumbled over some large clinkers beside the track, and struck his foot against some old ties overgrown with grass, fell, and was seriously injured. The court held, the Chief Justice dissenting, that he was employed in interstate commerce, and affirmed the judgment of the Court of Appeals of Georgia in his favor, Mr. Justice Pitney saying:

The court held that although plaintiff's primary object may have been to rescue his fellow employee, his act nevertheless was the first step in clearing the obstruction from the tracks, to the end that the remaining cars for train No. 75 might be hauled over them; that his work facilitated interstate transportation on the railroad, and that consequently he was engaged in interstate commerce when injured. We concur in this view. From the facts found, it is plain that the object of clearing the tracks entered inseparably into the purpose of jacking up the car, and gave to the operation the character of inter

state commerce.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-FEDERAL STATUTEINTERSTATE COMMERCE-LINEMAN-Southern Pacific Co. v. Industrial Accident Commission of California, Supreme Court of California (Dec. 14, 1916), 161 Pacific Reporter, page 1143.-In this case an award of compensation had been made by the industrial accident commission to Jessie Covell for the death of her husband, Victor Covell. At the time of the fatal accident he was at work for the company as a lineman, and engaged in removing a telephone wire which had fallen upon a trolley wire, the removal of which was necessary before trains could be operated on an electric railway constituting a part of the passenger system, both interstate and intrastate. It was decided that the principles controlling in this case were the same as those applied in the case of the same title relating to a gateman (161 Pac. 1139; see p. 92), and the award was annulled, it being held that the matter was governed by the Federal Employers' Liability Law, and that the commission had been without jurisdiction to make an award. The following is quoted from the brief opinion delivered for the court by Judge Angellotti:

It was necessary that this telephone wire be removed in order that cars might be operated, as it was impossible to operate cars over the line until such wire had been removed. Deceased being thus engaged directly in removing an obstruction to the use of an instrumentality in actual use for purposes of interstate commerce was engaged in interstate commerce at the time of the accident.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-FEDERAL STATUTEINTERSTATE COMMERCE-REPAIRING LOCOMOTIVE-Minneapolis & St. Louis Railroad Co. v. Winters, Supreme Court of the United States (Jan. 8, 1917), 37 Supreme Court Reporter, page 170.-George H. Winters, a machinist's helper, was injured while working in a roundhouse repairing an engine. Judgment in his suit against the company was in his favor, and the company appealed. The record in the case did not make it clear whether the verdict was rendered in accordance with a view that the case was within the scope of the Federal act or the State law. In order to give the Supreme Court jurisdiction on appeal to consider questions raised by the company it was necessary to find that the facts, which had been agreed upon in the trial court, showed an employment in interstate commerce and a consequent applicability of the Federal act. The court held that this was not shown, Mr. Justice Holmes saying in the opinion delivered by him:

The agreed statement is embraced in a few words. The plaintiff was making repairs upon an engine. The engine "had been used in the hauling of freight trains over the defendant's line. . . which freight trains hauled both intrastate and interstate commerce, and it was so used after the plaintiff's injury." The last time before the injury on which the engine was used was on October 18, when it pulled a freight train into Marshalltown, and it was used again on October 21, after the accident, to pull a freight train out from the same place. That is all that we have, and is not sufficient to bring the case under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the States. An engine, as such, is not permanently devoted to any kind of traffic, and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events.

EMPLOYERS' LIABILITY--RAILROAD COMPANIES-FEDERAL STATUTEINTERSTATE COMMERCE-SHIFTING CAR TO BE LOADED WITH INTERSTATE SHIPMENT-SAFETY APPLIANCES-UNCOUPLING FOR FLYING SWITCH-Christy v. Wabash R. Co., Kansas City Court of Appeals, Missouri (Jan. 29, 1917), 191 Southwestern Reporter, page 241.Laura Christy brought action for the death of her husband, occurring while in the employ of the railroad company named. In the circuit court of Randolph County a jury rendered a verdict in her favor, and judgment was entered thereon. It was evident from this verdict