a train would approach him without notice first being given to him. This point is ruled against the defendants.

Counsel for defendants also insist that the plaintiff is not entitled to a recovery in this case because his injury was the result of a risk incident to his employment; that is, he assumed all risks incident to his employment, and that his liability to be knocked off of the car mentioned and being injured is one of those risks. This insistence is untenable for two reasons: First, because this was not a risk incident to his employment. Such risks are purely incidental to the employment, and an injury is liable to occur thereby at any time during the performance of the work undertaken, unaided in any degree by the negligence of the employer. * The second reason before suggested why this insistence is untenable is that the evidence tended to show that it was the negligence of the defendants which caused the injury, and not the result of an assumed risk. The evidence presented a question of fact for the jury, and the court properly submitted it to them.

* *

EMPLOYERS' LIABILITY-ASSUMPTION OF RISK-RELEASE-CHANGED CONDITIONS Gold Hunter Mining & Smelting Co. v. Bowden, United States Circuit Court of Appeals, Ninth Circuit (June 3, 1918), 252 Federal Reporter, page 388.-Bowden was in the employ of the smelting company, operating a steel drill which the company provided, and which had once been broken and repaired by welding. While in operation the drill broke in the weld and caused Bowden to receive certain injuries. The court held that, although Bowden had assumed the risk of operating welded steel drills, it could not be said that he assumed the risk of a defectively welded drill and the question of the quality of the drill was properly left to the jury. Bowden had been treated by a physician for a while, and, on the statement of the latter as to the nature of his injuries, signed a release. Bowden met an agent of the company at the request of the physician in the latter's office. The agent asked the nature of Bowden's injuries and was told that they were not serious and that $200 would be enough to cover the expenses of treatment. After some discussion a release was signed and a draft for $200 made out. Later complications developed from the same injuries and Bowden's leg was removed, for which he brought suit and recovered judgment. The release was set up by the company as a defense, but Bowden claimed that the release did not cover the loss of a leg. The court of appeals in the course of its opinion said:

It would be a very strained construction to hold that plaintiff, a healthy man, in the prime of life, dependent upon a calling which requires unusual physical strength, intended to accept $200 (all of which was paid by the indemnity insurance company to the hospital and physician, for attention to injuries received before the serious injuries to the leg and arm delevoped) as full compensation for the permanently helpless condition in which he evidently is. A fair con

struction of the evidence is that the release was made under the belief by both parties that there was no injury other than those specified (strained back and bruised scrotum), and which were deemed not

serious.

Judgment for Bowden affirmed.

EMPLOYERS' LIABILITY - DISEASE-OCCUPATIONAL DISEASE-INJURY-IMPAIRMENT OF HEALTH-VIOLATION OF STATUTE-Gay v. Hocking Coal Co., Supreme Court of Iowa (Nov. 16, 1918), 169 Northwestern Reporter, page 360.-Gay was in the employ of the coal company when he was stricken down by reason of breathing foul air as he was working in room No. 10 of the company's mine. The air had become laden with "damps" and other impurities. The result was that plaintiff was unable to work for eight months and then his health was so impaired that he was unable to do the same amount of work as he had formerly done. The company had elected to reject the provisions of the workmen's compensation law and plaintiff accordingly brought suit for damages for personal injuries. The counsel for defendant claimed that the injury sustained by Gay was an occupational disease, and then rather inconsistently argued that as recovery for occupational diseases could not be had under the workmen's compensation act, Gay should not be allowed to recover. The laws of the State of Iowa provide that mines must be ventilated and that a certain amount of pure air must be provided both man and beast working in the mine, and it further provides that the air must not be permitted to become noxious. After reviewing and quoting two instructions of the lower court to the jury where it was stated that the jury, although it found plaintiff had sustained such injuries as he claimed, must also find that they were not the result of an occupational disease, the court reversed the judgment of the lower court in favor of the defendant, saying in part as follows:

We can not avoid the conclusion that the charge so far as quoted is erroneous both in substance and effect. An "occupational disease suffered by a servant or employee, if it means anything as distinguished from a disease caused or superinduced by an actionable wrong or injury, is nothing more nor less than a disease which is the usual incident or result of a particular employment in which the workman is engaged, as distinguished from one which is caused or brought about by the employers' failure in his duty to furnish him a safe place to work. If the employer fails to provide a reasonably safe place to work, or fails to observe the specific requirements of the statute with respect thereto, and as a result of such neglect the employee is injured, the liability of such employer can not be avoided by calling such injury an "occupational disease" or by showing that disease of that nature is often the accompaniment or result of such employment, even when all due care has been exercised by the

employer. * *There is no principle or rule of law where, in order to make a prin.a facie case, plaintiff was bound to plead and prove that he was not suffering from an occupational or other variety of disease, except as such negation may be implied from proof that his injury was the proximate result of defendant's failure to perform its statutory duty to expel the gas from the mine or otherwise render it harmless. It may also be added, in view of the argument of counsel, that if defendant did fail in its duty in this respect, and the plaintiff was thereby physically overcome or disabled to a degree causing him to suffer injury or loss, defendant's liability is neither avoided nor lessened by reason of the fact that plaintiff sustained no wound or bruise or other hurt of a traumatic character or origin. A wrongful injury which operates to destroy or undermine or impair the health of another is no less actionable than is a wrong from which the injured person sustains wounds or bruises or broken bones.

The judgment in favor of the mine company was therefore reversed, and the case remanded to the court below for a new trial.

EMPLOYERS' LIABILITY-EMPLOYMENT OF CHILDREN-AGE LIMITCONTRIBUTORY NEGLIGENCE-Karpeles v. Heine et al., Supreme Court of New York, Appellate Division (Dec. 7, 1917), 167 New York Supplement, page 925.-Hans Karpeles, a boy 13 years and 10 months of age, was employed by Marie C. Heine and others to operate an elevator in an apartment house. Section 93 of the Labor Law of the State forbids the employment of children under 16 years in the operation of elevators. After taking a window cleaner to one of the upper floors, as directed, he stepped into the hall, and when he attempted to step back into the elevator cage he was injured by falling down the shaft, as the elevator had moved, apparently through a defect permitting it to move upward when empty, without power. It was shown that there was no light in the elevator, and little in the hall. The trial court charged the jury that the unlawful employment constituted negligence on the part of the employers, but that if the plaintiff was guilty of contributory negligence he could not recover. Under these instructions the jury found for the defendants, but the boy's counsel on appeal contended that the violation of the statute created an absolute liability. The majority of the court took the same view as the trial court, the opinion delivered by Judge Smith citing Bachman v. Little, 152 App. Div. 811, 137 N. Y. Supp. 699, and other cases. Two of the five judges hearing the case dissented, Judge Page expressing their views in a dissenting opinion. He distinguishes the present case from the others, and states that the question has not been squarely presented in New York, but that in other States it has been held that unlawful employment makes the employer absolutely liable for injury. Stating that the purpose of the prohibition of the employment of children in the dangerous occupation is for the protection of the children and also of the public

riding in elevators, from the lack of "judgment, discretion, care, and caution" presumed not to exist in persons so young, he points out the inconsistency of requiring the exercise of such judgment and care on the part of a child unlawfully employed, in order that he may recover damages in case of injury.

EMPLOYERS' LIABILITY-EMPLOYMENT OF CHILDREN-DANGEROUS EMPLOYMENT-Reiten v. J. S. Stearns Lumber Co., Supreme Court of Wisconsin (Feb. 5, 1918), 165 Northwestern Reporter, page 337.Bernard Reiten, a boy 15 years of age, was employed on Saturday, May 27, 1916, without an employment permit, to throw edgings from live rolls carrying boards and edgings. On the following Monday he was injured by a board striking his thigh. A bony growth, which necessitated two operations, developed, and in May, 1917, it was found to be growing a third time, making another operation a probable necessity. Through his guardian he sued the company named, his employer, for damages, and a jury rendered a verdict in his favor for $5,500. The court gave him the option of a new trial or the reduction of the amount to $2,500. He accepted the reduction, and the company appealed. The court had submitted only the matter of damages to the jury, holding that the company was absolutely liable, because it had unlawfully employed a boy under 16 years in a dangerout occupation without a permit. This view was sustained, and the judgment affirmd, the court holding also that the damages after the reduction were not excessive. Judge Eschweiler delivered the opinion, quoting the language of the statute as to the class of employment forbidden to boys of that age, and commenting as follows upon the dangerousness of the work the boy was doing:

"23. Any employment dangerous to life or limb, injurious to the health or depraving to the morals."

We are satisfied under the undisputed testimony in this case that the judgment may and ought to be supported upon this last-quoted provision of the child labor law. His freedom of motion was limited to the small area of 3 feet in width by 6 or 7 feet in length. Heavy planks passed before him on the table along live rollers, the motion of which evidently, so far as he was concerned, was practically irresistible. There was the ever-present possibility of planks or material becoming choked and caught anywhere along the table, thereby misplacing the planks and forcing them over into the space in which he was confined. All warrant and compel us, upon the undisputed facts and circumstances, to say as a matter of law that there was an employment of this boy under 16 years of age within the prohibition of the language of the statute and that particular subdivision 23,

above.

123871°-20-Bull. 258-5

EMPLOYERS' LIABILITY-EMPLOYMENT OF CHILDREN-POSTING OF NOTICES SAFE PLACE TO WORK-Chabot v. Pittsburgh Plate Glass Co., Supreme Court of Pennsylvania (Jan. 7, 1918), 103 Atlantic Reporter, page 283.-Paul Chabot, a boy 14 years of age, was em ployed by the company named in hauling plates of glass on a truck, which plates it was his duty to place in racks behind and near to the cutter's table. While he was removing a plate from the truck he collided with a cutter, causing the glass to fall from his hands and strike his foot and injure it. Through his father he sued the company for damages, and, upon the jury's verdict in his favor, judgment was rendered in the court of common pleas of Armstrong County. On appeal the company contended that there was not evidence to sustain the plaintiff's claim that a safe place to work had not been furnished him in that the space between the cutters' table and the racks was only 3 feet, an insufficient amount of space to allow the cutters and the boy to move about without interference such as actually occurred. The court held that the question was for the jury, and that it had been properly submitted by the instructions given by the judge of the trial court. It was also held that the company was negligent as a matter of law because of a violation of the law relating to the employment of children. It had secured and kept an employment certificate for Chabot as required, but had not kept nor posted lists of children employed, as it was incumbent upon it to do under the provisions of the law. It was held that the proper attention to the lists was as essential a part of the employer's duty as any, and that failure to observe it would constitute the proximate cause of any injury happening to a minor unlawfully employed because of failure to keep and post the lists. It was pointed out that where such failure existed it was impossible for the company to sustain its burden of proving that it had brought itself under the exceptions to the prohibition of the employment of children under 16 years of age.

EMPLOYERS' LIABILITY-FELLOW SERVANT-CONSTITUTIONALITY OF STATUTE—Mason v. New Orleans Terminal Co., Supreme Court of Louisiana (May 27, 1918), 79 Southern Reporter, page 26.—Mason was employed by the defendant as a car repairer. While he was repairing the brake beam of a car another workman, a carpenter, dropped a large piece of wood from the top of the car and it fell upon Mason and injured him, whereupon he sued, and recovered damages. Defendant alleged that the carpenter at work on top of the car was a fellow servant with plaintiff Mason, who was repairing the ironwork of the same car; also that the statute of the State abrogating the fellow-servant rule for all servants generally of public-service