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as its agent, whenever the lessee commits an act resulting in damages, against which the law, for reasons of public policy, will not allow the lessor to contract. A railroad company has the power to enter into a great many special agreements, but it can not make a valid contract whereby it will be exempt from liability for negligence. (Wallingford & Russell v. Railroad, 26 S. C. 258, 2 S. E. 19; Johnstone v. Railroad, 39 S. C. 55, 17 S. E. 512.) This principle is applied, even when the action is by an employee based on negligence. *(Johnson v. Railroad, 55 S. C. 152, 32 S. E. 2, 33 S. E. 174, 44 L. R. A. 645, 20 Enc. of Law, 154, 155.) The reason for the rule is that such contracts are against public policy. The defendant could not, therefore, escape liability by leasing its road. This principle is specially applicable to railroads, as it very frequently happens that acts of negligence, committed by them against their employees, jeopardize the rights of shippers and of the traveling public.

Again, section 15, art. 9, of the constitution, provides that: “Every employee of any railroad company shall have the same rights and remedies for any injury suffered by him, from the acts or omissions of said corporations or its employees, as are allowed by law to other persons not employees, when the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of a party injured.

When death ensues from any injury to employees, the legal or personal representatives of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons.” The cases of Boatwright v. Railroad, 25 S. C. 128, Hicks v. Railroad, 63 S. C. 559, 41 S. E. 753, and Rhoades v. Railway, 68 S. C. 494, 47 S. E. 689, recognize the principle that the conductor of a train is the representative of the railroad company. There was testimony tending to show that the injury was the result of negligence on the part of the conductor. Therefore the legal representative of the deceased was entitled to the same rights and remedies as are allowed by law to other persons not employees. The exceptions raising this question are overruled.

A further contention was that the court erred in refusing the motion for a new trial. In support of this contention three reasons were offered, but one of which will be noted here, namely, that there was an entire absence of testimony to support the verdict as to the negligence of the company. As to this Judge Gary said:

The first ground presents a question of law. The testimony tended to show that Reed had mistaken the time, by reason of the fact that his watch had run down, but it likewise tended to show that this was caused by the defendant, through its conductor, in requiring or permitting Reed to operate his engine, after he had been in the discharge of his duties for 42 consecutive hours immediately preceding the collision, without rest, and for about 27 or 28 hours without anything to eat. This was evidence of negligence, and the first ground of the motion was properly overruled.

And concluded:

It is the judgment of this court that the judgment of the circuit court be affirmed.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-STUDENT BRAKEMAN_STATUS AS EMPLOYEE--CONTRACTS EXEMPTING FROM LIABILITY--Atchison, Topeka and Santa Fe Railway Company v. Fronk, Supreme Court of Kansas, 87 Pacific Reporter, page 698.-C. A. Fronk sued as administrator of the estate of Elmer Tindall to recover damages for the death of the latter which resulted from accidental injuries received while he was in the employment of the company. Tindall was on a freight train under a contract permitting his presence thereon for the purpose of learning the duties of brakeman when the accident causing his death occurred through the negligence of the agents, servants, and employees of the defendant company.

The district court of Stafford County gave judgment for damages against the company, from which it appealed, claiming first that Tindall was on the train as a mere licensee for his own personal benefit, and further that he had by contract expressly waived all claims to benefits in case of accidental injury occurring while he was so engaged.

The ruling of the supreme court supported the findings of the court below, as appears from the following quotation from its opinion which was delivered by Judge Greene: | In determining the relation of parties courts are not bound by the agreements of the parties as to what such relations shall be or to the legal effect of its terms. Notwithstanding such agreements, whenever the question is properly presented courts will analyze the elemental facts of the agreement and determine therefrom the actual relations of the parties. Persons capable of contracting are at liberty , inter parties (partes), to make any contract that may to them seem advantageous, provided, however, that such contracts do not attempt to transgress the law or contravene public policy. But, in the exercise of their right to contract, persons are powerless, by contract or otherwise, to conclude one another by agreeing to place upon the terms of their agreements a legal construction different from that which the law places upon them, or a construction prohibited by public policy. Going beyond the mere conclusions stated in the contract, and analyzing the facts, as they appear from the contract itself, for the purpose of determining the actual relations of the parties at the time Tindall was killed, the conclusion is irresistible that Tindall was in the service of the railway company, and, as between him and the company while in the discharge of duties assigned to him, he was entitled to protection from the negligence of the company's servants.

The contract is adroitly drawn. Its apparent purpose is to relievo the company from liability to Tindall for injuries sustained while working for the company, in consequence of the negligence of the company's agents, servants, or employees. In expressing the duties to be performed by Tindall the language is permissive only; but the services which the agreement contemplates that Tindall should perform for the company are sufficient to justify the conclusion that while performing such services he was an employee of the company. The railway company was not conducting a free school for the education of freight brakemen, nor was Tindall riding gratuitously on the defendant's train at the time he was killed, but was working for the company, assisting in the operation of the train. Notwithstanding the agreement to the contrary the elemental facts created the relation of master and servant. The compensation of the company for the privileges granted to Tindall was the work to be performed by him as freight brakeman. [Cases cited.]

In the cases cited there was no contract attempting to determine the relation of the parties. The law, however, determines that ques tion, and it must be held in this case that the relation was that of master and servant.

It is also contended that the waiver by the deceased of any claim for damages for injuries in consequence of the negligence of the company, its employees, agents, or servants, is a complete defense in this action. With this we do not agree. Our statute provides that: "Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage." (Gen. St., 1901, section 5858.) The State has an interest in the lives, health, and safety of its citizens, and whenever a business, although lawful in itself, is dangerous to the lives or injurious to the health of the employees engaged in conducting such business, it becomes a question of public concern and the State may intervene in the interest of public welfare.

For the reasons suggested, a contract by one entering the service of a railroad company waiving his right of action for damages which he may receive in consequence of the negligence of its agents, servants, or employees is void.

HOURS OF LABOR-EIGHT-HOUR LAW-MUNICIPALITIES-CONSTITUTIONALITY OF STATUTE— Keefe v. People, Supreme Court of Colorado, 87 Pacific Reporter, page 791.John A. Keefe and others were convicted in the district court of the city and county of Denver of employing laborers on public improvements for a longer period than eight hours a day, from which judgment they appealed. The work was that of constructing a sewer for the city, and the statute limiting to eight per day the hours of labor of employees on public works was claimed to have no constitutional application. This claim the supreme court refused to allow, and affirmed the judgment of the lower court, as appears. from the following quotation from the opinion of Judge Gabbert, who spoke for the court:

Counsel are agreed that this statute does not fall within the police power of the State. The attorney-general concedes that it can not be sustained as a valid exercise of such power, since it is inhibited by the decision of this court In re Morgan, 26 Colo. 415, 58 Pac. 1071 [Bulletin No. 27, p. 406), and as that proposition is within the ban of practically all decisions of Federal and State courts in similar cases. If it can be upheld at all, the attorney-general says, it must be solely upon the principle that the State may prescribe for itself and its subordinate political subdivisions, the conditions upon which all public work shall be performed; and as counties, townships, school districts, and munici

palities are but mere political subdivisions of the State government, its auxiliary organizations, or agencies, for the purpose of local government, the State, as the principal, may impose upon these agencies precisely the same conditions with respect to the doing of their public work that it can prescribe for itself. We agree with counsel that this statute, if valid, is so upon the ground that the State, in its proprietary capacity, may properly prescribe for itself and its auxiliary arms of government the terms and conditions on which work of a public nature may

be done. It can not be upheld as an exercise of the sovereign police power, as has been decided by the Supreme Court of the United States and every State court of last resort that has had occasion to consider the question. The latest decision of the Supreme Court of the United States on that question is Lochner v. N. Y., 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937 [Bulletin No. 59, p. 340), in which many of the cases are reviewed, and the distinction between a case like this and the one under consideration was pointed out. Whether the statute can be upheld on the ground relied upon by the attorneygeneral, the authorities are not in accord. Probably the leading case against such legislation is Cleveland v. Clements Construction Co. (Ohio), 65 N. E. 885, 59 L. R. A. 775, 93 Am. St. Rep. 670.

Other cases were cited, after which Judge Gabbert said:

These authorities are based upon the proposition that with respect to the carrying on of works of improvement by municipal corporations, they are as free from legislative restraint by statutes of this character as are private corporations in carrying out the objects of their incorporation; and, since private corporations may not thus be controlled, it follows that municipal corporations can not be; that a municipal corporation, in exercising that branch of its powers which may properly be designated as “private,” concerning its purely private rights, are, like private corporations, free from such control of the legislative department of government. On the other side, the leading case, and the one on which the attorney-general mainly relies, is Atkin v. Kansas, 191 U.S. 218, 24 Sup. Ct. 124 [Bulletin No. 50, p. 177). The case is one of first impression in this State. Defendants are mistaken in their supposition that In re Morgan, supra, is conclusive in their favor. The principle underlying the statute there construed is entirely different from that upon which the act under consideration rests. In the conflict of authority on the subject, the Supreme Court of the United States having decided the precise question in upholding the Kansas law in the Atkin Case, supra, we shall conform to our usual custom by following the lead of that august tribunal in determining the case at bar. Mr. Justice Harlan, in the course of his opinion in that case so concisely and lucidly states the principle upon which legislation of this character is upheld, that,without further comment, we cite the following excerpts, as constituting the reasons for sustaining our act: “These questions-indeed, the entire argument of defendant's counselseem to attach too little consequence to the relation existing between a State and its municipal corporations. Such corporations are the creatures, mere political subdivisions, of the State for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the State. They are, in every essential sense, only auxiliaries of the State for the purposes of local government.” * * * But defendants say, if such be the rule that is applicable to municipalities in this State organized under our general laws, it is not pertinent to the city and county of Denver, which was created by article 20 of the constitution. The present city and county of Denver was created by this constitutional amendment as the result of the direct vote of the people of the entire State.

But the municipality of Denver, though created by a constitutional amendment by a direct vote of the people, and having the power to frame its own charter, is just as much an agency of the State for the purpose of government as if it was organized under a general law passed by the general assembly. The mode of its creation does not change the nature of its relation to the State. Like cities and towns organized under the General Statutes, it is still a part of the State government. It is as much amenable to State control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities. The State still has the supreme power to enact general laws, declaring what shall be its public policy, and it can make them applicable to the city of Denver, as well as to all other cities of the State. This act in effect declares that it is the public policy of the State not to permit any officer or agent of the State, or its municipalities, or any contractor thereof, to employ any working man in the prosecution of public work for more than eight hours a day; and, for a violation of the statute, a penalty is provided. What the public policy of the State is rests with its legislative department. The work of building a sanitary sewer by a city, in a sense, is local in that it affects, primarily, its own citizens; but it is directly connected with the public health, and is a matter of concern and great importance to the people of the entire State. The State has never relinquished to the new city and county of Denver, and never can surrender to it, the power to enact laws to punish crimes and misdemeanors, and the operation of such laws embraces all of the people of the State, whether living in municipalities or counties created directly by the constitution, or organized under general laws.

HOURS OF LABOR-MINES-VIOLATION OF STATUTE-CONSTRUCTION-State v. Thompson, Supreme Court of Wyoming, 87 Pacific Reporter, page 433.- Al Thompson, a miner, was charged with the offense of having violated the law limiting to eight per day the hours of labor of miners and laborers in coal mines, and demurred to the charge. The district court of Sheridan County sustained the demurrer and the State appealed. The supreme court sustained the ruling of the court below, holding that the act of a miner working more than the prescribed eight hours was not an offense within the intent of the law.

The law in question is found in sections 2586-2589, Revised Statutes of Wyoming of 1899. The act provides that “Eight hours shall constitute a day's work for all miners and laborers” in coal mines, with exceptions as to emergencies; that the term “day” in a contract shall be construed to mean eight hours, and fixes a penalty for a vio

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