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Page:Harvard Law Review Volume 2.djvu/244

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made in obedience to the rules and regulations or by-laws of the master or employer, or in obedience to particular instructions given by any person delegated with the authority of the master or employer in that behalf.

5. When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway. << But the master or employer is not liable under this section, if the servant or employee knew of the defect or negligence causing the injury, and failed in a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master or employer, unless he was aware that the master or employer or such superior already knew of such defect or negligence ; nor is the master or em- ployer liable under subdivision one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition."

Then follow two brief sections (§§ 2591, 2592) allowing the personal representative to sue if injury results in death, and ex- empting damages recovered by the servant from payment of debts or other legal liabilities.

This statute, as was pointed out by the court in the first case coming up under it, " is a substantial copy of the English act." It gives the employee a right of action in certain cases as if he was one of the public, taking away from the employer the defence of common employment; but "when the employee who is in- jured and the employee whose negligence caused the injury are of the same grade, and as to all employees who do not come within either of the specified classes, the common-law rule still applies."^

Although there has been a number of cases on the statute in the lower courts, up to the present time only two cases, besides the one just referred to, have reached the Supreme Court. In Georgia Pacific Railway Company v. Brooks, 4 So. Rep. 289, the court held that a hammer used for driving spikes into cross- ties on a railroad was not " machinery " within the meaning of the act. In Georgia Pacific Railway Company v, Propst, 4 So. Rep. 711, the question as to who could claim the benefit of the statute came up. The court said : " Under the statute, the party claim- ing damages must be an employee at the time of the injury by

^Mobile & BirmiDgham R*y. Co. v. Holbron, 4S0. Rep. 146 (May, i