be less dangerous. The issue was whether the particular machinery was proper and suitable, and that was to be determined by its actual condition, and not by comparing it with other machines. Judgment reversed without a new trial.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-Houston and T. C. Ry. Co. v. Strycharski. 35 Southwestern Reporter, page 851.-This was an action brought in the district court of Harris County, Tex., by M. Strycharski, to recover damages for injuries received while in the employ of the Houston and Texas Central Railway Company. Judg ment was rendered for the plaintiff and the company appealed to the court of civil appeals of the State, which rendered its decision March 26, 1896, and affirmed the judgment of the lower court. The plaintiff, one of whose duties it was to fill the water tanks of cars, placed a ladder against a car standing with others on the track, and stood upon it, holding a hose, through which the water ran into the tank in the car through a hole in the roof. While so engaged, a switch engine approached the stationary cars, unobserved by plaintiff, and struck the rear car with sufficient force to upset the ladder and throw the plaintiff to the ground. There was no provision, by rule or otherwise, for the giving of notice before a coupling was made, the employees being expected to look out for such dangers and protect themselves; but plaintiff testified that on all previous occasions he had been warned, and had time to get out of danger before the cars were struck. Before this occasion, however, he had been engaged either in the Pullman sleeper, after its return to the main track, or in the coaches, cleaning closets, and the coupling had been made from the front. His exposure was different, on the night he was injured, from what it had previously been. His immediate superior, when giving him instructions about supplying the car with water, gave him no information or warning as to the change to be made in the manner of coupling, nor had he ever told him of it, or of the requirement that employees must look out for their own safety. The opinion of the court, delivered by Judge Williams, contains the following:

Plaintiff for many years had been in the service of this company, in different capacities, and had worked in the neighborhood of the depot at Houston, where he was hurt. About a week before he had received his injuries he was changed from his then occupation of cleaning stationary cars standing in sheds and on the tracks, and was put to perform the service in which he was hurt. This consisted, in a general way, of filling with water the tanks and cleaning out the water-closets in the cars of incoming and outgoing trains. His own evidence and that of his superior, Bloxsom, who had the power to employ and discharge such servants, and was the representative of the company, show that his previous experience was not sufficient to qualify him, without further instructions, for the new work, and that, in his new situation, there were risks which were not incident to his old, against which ordinary care for his safety required warning from the superior.

In view of the verdict of the jury, we conclude that by the change in the method of handling the cars on the night in question, plaintiff was exposed to a danger of which he was ignorant, and which his experience did not enable him to foresee; and that Bloxsom knew, or, by ordinary care, could have known it; and that such care would have required him to notify plaintiff of such danger; and that, in omitting to do so, he was guilty of negligence, which helped to cause plaintiff's injury. We further conclude that plaintiff was not guilty of negligence in failing to discover his danger before he was hurt, and that he did not assume the risk resulting from the absence of the regulation [for giving notice of danger], as he supposed there was one.

From these conclusions of fact, it results that plaintiff became entitled to recover of the receiver damages for his injuries. When the servant is inexperienced in the work which he is doing, and, with the knowledge of the inaster, is exposed to a danger of which he is ignorant, it is the duty of the latter to warn him; and when he fails to do so, and injury results to the servant, the master is liable. It is also the duty of the master, when engaged in a complex business, such as that in which the services of plaintiff were engaged, to adopt definite rules and regulations for the safety and protection of the employees. As plaintiff, under the evidence now before us, was situated so that he could not reasonably protect himself by watching out for the return of the switch engine with the cars attached, some method of warning was absolutely necessary for his safety, and the failure of the employer to provide for it entitles plaintiff to compensation for his injuries.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-Houston and T. C. Ry. Co. v. Kelly. 35 Southwestern Reporter, page 878.-This case was brought before the court of civil appeals of Texas on appeal from the district court of Washington County, where a judgment had been rendered for the plaintiff, Addie E. Kelly. The original action was brought to recover damages for the death of one Frank Kelly, used by a wreck on the Houston and Texas Central Railroad in January, 1893. The court of civil appeals rendered its decision April 30, 1896, sustaining the judgment of the lower court, and deciding, among other points, that a servant is entitled to recover for an injury sustained by the joint negligence of the master and fellow-servants.

In its opinion, delivered by Judge Pleasants, the following language is used:

If

The proposition submitted under the fourth and fifth assignments of error is that, "if fast running contributed proximately to the accident, the train being operated at the time by fellow-servants of the deceased, the plaintiff could not recover." This proposition is not correct. the accident was caused partly by the fast running of the train, and partly by the defects in the rail and the car wheel, and such defects were the result of the negligence of the defendant, it will not be denied that the deceased, if without contributory negligence on his part, might have recovered; and yet the "fast running of the train," through the negligence of the fellow-servants of the deceased, "contributed proximately to the accident." If injury result to the servant from the joint negligence of the master and fellow-servants, the master is liable.

MEASURE OF DAMAGES FOR WRONGFUL DISCHARGE—Babcock v. Appleton Manufacturing Company. 67 Northwestern Reporter, page 33.— This action was brought in the circuit court of Outagamie County, Wis., by Havilah Babcock against the Appleton Manufacturing Com. pany to recover a balance of $60, wages as traveling agent, alleged to be due on contract. He entered into a contract with the company to work for it for a term of years for a stipulated sum per month, and the contract contained a stipulation that either party should have the right to terminate the contract on giving sixty days' notice. He worked for the company a short time, when he was discharged without notice, having been paid up to the time of such discharge. He brought the suit to recover for sixty days' wages at the contract price, and judgment was given in his favor. The defendant appealed to the supreme court of the State, and the decision of said court, affirming the judgment of the lower court, was rendered April 14, 1896.

The opinion of the court, delivered by Judge Marshall, contains the following:

It is claimed on the part of appellant that the court erred in allowing plantiff full wages for the sixty days; that the proper rule is the difference between the wages agreed upon and the amount the employee earned, or might reasonably have earned, in other employment; and that it was incumbent on the plaintiff to show how much less he was able to earn than he was to receive under the contract. The rule of damages is as claimed, but not the rule in respect to the burden of proof. In such a case, what the employee earned, or might have earned, defendant is only entitled to by way of mitigation of damages. It is a matter of recoupment, which it is incumbent upon defendant to set up and establish.

In Barker v. Insurance Co., 24 Wis., 630, it is stated, in effect, that while the rule is, in case an employee is discharged, without cause, before the expiration of his term, in a suit by him against his employer for wages for the balance of such term, that the damages may be reduced by the amount which he did earn, or might reasonably have earned, elsewhere, yet the burden is upon the defendant to show affirmatively that plaintiff did in fact earn elsewhere, or might have had employment and compensation therefor, and the probable amount of it, and, if he offers no evidence on the subject, then no question is presented in regard to mitigation of damages, under such rule, to be passed upon by either court or jury.

UNAUTHORIZED DISCHARGE OF SERVANT-DAMAGES-Efron et al. v. Clayton. 35 Southwestern Reporter, page 424.-The original action was brought in the county court of Limestone County, Tex., by I. K. Clayton against A. Efron & Co., to recover damages for breach of a contract of employment. There was a judgment rendered for the plaintiff for the full amount sued for, and the defendants appealed to the court of civil appeals of the State, which rendered its decision March 11, 1896, sustaining the judgment of the lower court. The evidence

showed that Clayton entered into a contract with Efron & Co., by which they employed him as a clerk for the cotton season, commencing about the 15th of August, 1893, and expiring about the 15th of April, 1894, at a salary of $1,500, agreeing to pay him also 25 cents per bale on all cotton sold to English merchants during said period, such salary and commissions to be paid monthly, if required. Plaintiff alleged in his petition that in accordance with the contract he entered upon and continued in the employ of appellants for said period, and continued therein three months, ending on the 15th day of November, 1893, at which time appellants, without just and lawful cause therefor, discharged him from their employment; that by reason of his employment and the terms of the contract, appellants became liable, undertook and promised to pay him the sum of $187.50 per month, amounting for the three months' services to $562.50, and that by reason of the premises he was damaged in the further sum of $400, amounting in all to $962.50. The opinion of the court of civil appeals was delivered by Judge Neill, who, in the course of it, said:

The appellee proved every allegation necessary for him to recover the judgment. The appellants proved nothing, nor did they offer to prove anything. But they are here contending that there is no basis laid in appellee's petition for the $400 damages. The petition stated the contract, its wrongful breach, and the damages necessarily resulting therefrom, and was sufficient to support the judgment. When a servant has been wrongfully discharged, he may wait until the end of the term of his employment, and sue for the full amount of his salary, less any sum which the defendant may have the right to recoup. In such a case the actual damage is the actual loss inflicted by the discharge. It is the plaintiff's duty to use reasonable efforts to avoid loss by securing employment. The measure of damages is, therefore, the amount of wages he would have earned under the contract, deducting, however, such sums as he earned, or by reasonable diligence could have earned, elsewhere. The burden of proof is on the defendant to show that plaintiff might have obtained other employment, for the failure of the plaintiff to obtain other employment does not affect the right of action, but only goes in reduction of damages; and, if nothing else is shown, the plaintiff is entitled to recover the contract price upon proving the defendant's violation of the contract, and his own willingness to perform.

In view of these well-established principles of law, the appellants have no ground for complaining of the court's allowing the appellee to prove that he could not get employment for the entire time, and what he received for the time he was employed after he was discharged. There is no error in the judgment and it is affirmed.

LAWS OF VARIOUS STATES RELATING TO LABOR ENACTED SINCE

ANUARY 1, 1896.

DISTRICT OF COLUMBIA.

ACTS OF 1895-96.

CHAPTER 303.-Earnings of married women.

SECTION 3. Any married woman may carry on any trade or business, occupation or profession by herself, or jointly with others, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, profession, occupation, labor, or services shall be her sole and separate property, and may be used and invested by her in her own name. Approved June 1, 1896.

NEW YORK.

ACTS OF 1896.

CHAPTER 112.-Intoxication of employees of common carriers.

SECTION 41. Any person or officer of an association or corporation engaged in the business of conveying passengers or property for hire, who shall employ in the conduct of such business, as an engineer, fireman, conductor, switchtender, train dispatcher, telegrapher, commander, pilot, mate, fireman or in other like capacity, so that by his neglect of duty the safety and security of life, person or property so conveyed might be imperiled, any person who habitually indulges in the intemperate use of liquors, after notice that such person has been intoxicated, while in the active service of such person, association or corporation, shali be guilty of a misdemeanor. Became a law March 23, 1896, with the approval of the governor. Passed, threefifths being present.

CHAPTER 384.-Mercantile establishments — Employment of women and children. SECTION 1. No male under sixteen years of age, and no female under twenty-one years of age, employed in any mercantile establishment of this State, shall be required, permitted or suffered to work therein more than sixty hours in any one week; nor more than ten hours in any one day, unless for the purpose of making a shorter work day on any one day of the week; and in no case shall any male under sixteen years of age, nor any female under twenty-one years of age, work in any mercantile establishment after ten o'clock in the evening or before seven o'clock in the morning of any day. The foregoing provision of this section shall not be so construed as to apply to the employment of any person in any mercantile establishment on any Saturday of the year, except that the total number of hours of labor per week of a male under sixteen or a female under twenty-one shall not exceed sixty hours. None of the provisions of this section shall apply to the employment of any persons between the fifteenth day of December of any year and the first day of January of the year next following.

SEC. 2. No child under fourteen years of age shall be employed in any mercantile establishment in this State. It shall be the duty of every person employing children to keep a register in which shall be recorded the name, birthplace, age, and place of residence of every person employed by him under the age of sixteen years; and it shall be unlawful for any proprietor, agent, foreman, or other person in or connected with a mercantile establishment, to hire or employ any child under the age of sixteen years to work therein without there is first provided and placed on file in the office thereof a certificate as hereinafter set forth. Which said register and certificate shall be produced for inspection on demand made by the board or department of health or health commissioner or commissioners of any city or town or incorporated village where such child is employed. The certificate to be provided as above set forth shall be a certificate from the board or department of health or health