SEC. 2. That every common carrier by railroad in the Territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

SEC. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee or where said injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

SEC. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

SEC. 5. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this Act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.

SEC. 6. That no action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued.

SEC. 7. That the term "common carrier" as used in this act shall include the receiver or receivers or other persons or cor

porations charged with the duty of the management and operation of the business of a common carrier.

SEC. 8. That nothing in this Act shall be held to limit the duty or liability of common carriers or to impair the rights of their employees under any other Act or Acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the Act of Congress entitled, "An Act relating to liability of common carriers in the District of Columbia and Territories, and to common carriers engaged in commerce between the States and between the States and foreign nations to their employees,” approved June eleventh, nineteen hundred and six.

Approved, April 22, 1908.

§ 531. The amendatory act of April 5, 1910.

AN ACT To amend an Act entitled "An Act relating to the liability of common carriers by railroad to their employees in certain cases," approved April 22, 1908.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That an Act entitled "An Act relating to the liability of common carriers by railroad to their employees in certain cases," approved April twenty-second, nineteen hundred and eight, be amended in section six so that said section shall read:

"SEC. 6. That no action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued.

"Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

"SEC. 2. That said Act be further amended by adding the following section as section nine of said Act:

"SEC. 9. That any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury."

Approved April 5, 1910.

§ 532. Construction of act of 1908.-The act of 1908 differs from that of 1906, in that it sets out in separate sections the ex

ercise of the power of congress under the commerce clause in regulating interstate railroad carriers (sec. 1), and its plenary powers over railroad carriers in the territories, the district of Columbia and other possessions of the United States, where congress exercises sovereign authority (sec. 2).

The act has been sustained in Zikos v. Oregon R. & N. Co., 179 Fed. 893, E. D. Wash. (1910), and in Watson v. I. M. & S. R. Co., 169 Fed. 942 (1909), where it was held to be valid and within the lawful power of congress and free from the infirmities of the act of 1906. The act has not (Oct. 1911) been directly passed upon by the supreme court but was referred to in the decision in the Schlemmer Case, supra, § 523, and in the Deik Case, supra, as amending the Safety Appliance Act, see supra, $507.

It was held in these cases that the abolition of the fellow servant rule in the case of carriers by rail was not an arbitrary or unreasonable classification, and under the commerce clause congress had the power to regulate the relation of master and servant of carriers by rail engaged in interstate transportation, if limited to employees when engaged in interstate service. The validity of the act has also been assumed in other cases of the circuit and in the circuit court of appeals of the eighth circuit. Johnson v. Great Northern Ry. Co., 178 Fed. 643 (1910).

§ 533. The abolition of contributory negligence in connection with the Safety Appliance Act.-Under the proviso of section 3 of the act of 1908 no employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation of such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.

This provision was applied and enforced in Johnson v. Great Northern Railway Co., supra, as amending the Safety Appliance Act and making the question of assumption of risk and contributory negligence immaterial in an action under the Safety Appliance Act. The court said that the plaintiff whose duty it was to see to the coupling of the cars and the air hose upon the cars which were upon the transfer track-some of the cars, among them the one in question, engaged in interstate commerce-was. an employe engaged in interstate commerce. The supreme

court also in two cases,-in the Schlemmer Case, supra, and the Deik Case, supra,-recognized the act of 1908 as amending the Safety Appliance Act. It follows, therefore, that under this proviso the defense of contributory negligence as well as that of the assumption of risk is taken away where the failure of the carrier to provide the safety appliances required by law contributes to the injury or death of the employe.

§ 534. The amendment of 1910.-The purpose of the amendment of 1910 is illustrated in the case of Newell v. B. & O. R. R. Co., 181 Fed. 698, W. D. of Pa. In this case a citizen of Pennsylvania sued a Maryland corporation in the federal circuit court of Pennsylvania to recover damages for injuries wherein the federal jurisdiction under the compliant rested exclusively on diverse citizenship, the plaintiff thereafter amending his complaint to show cause for injury while engaged in interstate commerce under this act. The court held that it was thereby deprived of jurisdiction, as the suit was brought in the district of defendant's residence, and, under the law, where jurisdiction is founded not only on diverse citizenship within the meaning of the judiciary act as amended, the suit can be brought only in the district of which the defendant is an inhabitant. The same ruling was made in other circuits. See Cound v. A. T. & S. F. Ry. Co., 173 Fed. 527 (1909), W. D. Tex.; Whittaker v. I. C. Ry., 176 Fed. 130, C. C. La. Prior to this amendment of 1910, the act made no provision of the survival of the action so given for an injury sustained in the event of the death of the injured party. See Fulgham v. Midland Valley (1909), 167 Fed. 660.

§ 535. The amendment of 1910 not retroactive. In this Newell Case, the matter of jurisdiction came before the court after the amendment of 1910 had been adopted. The court said that the amendment of 1910 did not confer jurisdiction upon pending suits, and the very fact that such an enactment was deemed necessary by congress, was persuasive that prior thereto such action could only be brought in accordance with the acts conferring jurisdiction upon the circuit court; and as the jurisdiction sought was not founded only upon diverse citizenship, but upon a federal right, the suit could be brought only in the district of defendant's residence.

The Act of 1910 removes this difficulty as to actions thereafter

brought, so that suits can now be filed in the district of the resi dence of the defendant, or in which the cause of action arises, or in which the defendant is doing business during the time of commencing the action.

§ 536. What is employment in interstate commerce?-The most difficult question in the application of the act is the determination of what is employment in interstate commerce within the meaning of the act. The act of 1906 was declared invalid, for the reason that it applied to employes of interstate carriers, whether those employes were employed in interstate or intrastate commerce; so it must be proven that the employes are engaged in intrastate commerce in order to sustain a recovery under the act. Thus the same employes may be employed at times in interstate and at times in intrastate service, as to the same track, and the same equipment and in the same stations are used for both kinds of traffic.

In Taylor v. S. Ry. Co., 178 Fed. 380, 1910, it was held that a member of a railroad bridge gang, injured while engaged within the scope of his employment in repairing bridges by an alleged defective scaffold, though his duty required work in the repair of bridges in different states, was not engaged in interstate commerce. On the other hand, it was held in Zikos v. Ore. R. & N. Co., supra, that a section hand working on the track of the railroad over which both interstate and intrastate trains moved was employed in interstate commerce within the meaning of the act. In that case, the court said that where the employment necessarily and directly contributes to the more extended use, and without which interstate traffic could not be carried on at all, no reason appears for denying the power over the one, although it may indirectly contribute to the other.

The particular question is an apt illustration of the intricacy to which our dual system of government often leads; but the intricacy is but an incident, and it can neither defeat nor impair the power of congress over interstate commerce.

In Colasurdo v. C. R. R. of N. J., 180 Fed. 832, the court held that a track walker injured while assisting in repairing a switch in a railroad yard, and injured through the negligence of his fellow employes, was engaged in interstate commerce, and was entitled to the right secured by the act; and that the statute did not say