relied for the relief sought. Only three of these grounds need be stated, as the remainder were either without merit or were obviated by an amendment to the complaint which upon motion the plaintiff was allowed to make. They were as follows:

"First. The complaint filed herein does not state facts sufficient to constitute a cause of action.

"Second (Sixth). The plaintiff (complaint) in this case and the testimony on behalf of the plaintiff, supplemented by tahe testimony introduced on behalf of the defendant, discloses as a matter of law that plaintiff assumed the risk of the accident which befell him at the time and place mentioned in the complaint.

"Third (Twelfth). It appears from the testimony in this case that plaintiff was guilty of a positive and distinct violation of the statutes of this state in failing to take down or prop the roof of coal and caused the injury complained of."

The motion was sustained, apparently upon the theory that the evidence disclosed that plaintiff was guilty of the violation of a statute, and that such violation of law contributed proximately to his injuries. The statute in question will be found quoted in the opinion. From a judgment dismissing the complaint on the merits, this appeal is prosecuted.

ROBERTS, C. J. (after stating the facts as above. [1] Under the facts in this case as disclosed by the record, the paramount question presented is whether the appellant assumed the risk incident to the appellee's violation of the statute, which required it to "provide an ample supply of timbers and to cause the same to be delivered on the pit car, at the request of the miners, as near as practicable to the place where the same are to be used" (paragraph 11, subsec. 64, § 3507, Code 1915), failure to comply with which is made a penal offense by subsection 20 of the same section. Upon the question as to whether there had been a failure to furnish such timbers and props there was a direct conflict in the evidence; hence, if appellant did not assume the risk, he was entitled to go to the jury upon this question.

The English and American decisions dealing with the question will be found collected in the notes to the following cases reported in L. R. A. Reports: O'Maley v. South Boston Gaslight Co., 47 L. R. A. 161, subd. "h," p. 190; Denver & Rio Grande R. R. Co. v. Norgate, 6 L. R. A. (N. S.) 981; Johnson v. Mammoth Vein Coal Co., 19 L. R. A. (N. S.) 646; Hill v. Saugestad, 22 L. R. A. (N. S.) 634; Poll v. Numa Block Coal Co., 33. L. R. A. (N. S.) 646; Fitzwater v. Warren, 42 L. R. A. (N. S.) 1229;

Curtis & Gartside Co. v. Pribyl, 49 L. R. A. (N. S.) 471. From cases collected in the above notes it will be seen that there is an irreconcilable conflict in the authorities, both federal and state, on the question. The case of D. & R. G. R. R. Co. v. Norgate, supra, 141 Fed. 247, 72 C. C. A. 365, 6 L. R. A. (N. S.) 981, 5 Ann. Cas. 448, is regarded generally as the leading American case holding that the servant assumes the risk, while the case of Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 49, 48 L. R. A. 68, is the leading case holding to the contrary. Both sides of the question have been so often and so ably stated and presented by eminent judges that it is hardly possible to add anything to the argument on either side. It is noteworthy that the modern trend of authority is in favor of the rule that the servant does not assume the risk. The reason for this holding is so well stated by the Illinois Supreme Court in the case of Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, 98 N. E. 541, 41 L. R. A. (N. S.) 628, Ann. Cas. 1913C, 204, that we quote from it at length:

"The passage of a law like that now under consideration implies that the class of employes for whose protection it was intended nad not been able to protect themselves witnout it. Its object, as indicated by the title of the act, is to provide for the health, safety, and comfort of employes in factories, mercantile establishments, mills, and workshops in this state, and the authority for it is found in the police power of the state. The effect of it is to create a new situation in the relation of master and servant, and to present the new question whether the doctrine of assumption of risk heretofore applied to that relation should apply in the same way to the new conditions. The duty of the master has been changed. He may no longer conduct his business in his own way. He may no longer use such machinery and appliances as he chooses. The measure of his auty is no longer reasonable care to furnish a safe place and safe machinery and tools, but, in addition to such reasonable care, he must use in his business the means and methods required by the statute. The law does not leave to his judgment the reasonableness of inclosing or protecting dangerous machinery, or permit him to expose to increased and unlawful dangers such of his employes as may be driven by force of circumstances to continue in his employ rather than leave it and take chances on securing employment elsewhere under lawful conditions. The guarding of the machinery mentioned in the statute is a duty required of the master for the protection of his workmen,

and he owes the specific duty to each person in his employ. To omit it is a misdemeanor subjecting him to a criminal prosecution. The necessity for such legislation is suggested by a consideration of a sentence from the opinion in the Knisley Case (148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367), which says: "There is no rule of public policy which prevents an employe from deciding whether, in view of increased wages, the difficulties of obtaining employment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the rule of obvious risks.' Notwithstanding the theoretical liberty of every person to contract for his labor or services and his legal right to abandon his employment if the conditions of service are not satisfactory, practically, by stress of circumstances, poverty, the dependence of his family, scarcity of employment, competition, or other conditions, the laborer frequently has no choice but to accept employment upon such terms and under such conditions as are offered. Under such circumstances experience had shown, before the passage of the statute, that many employers would not exercise a proper degree of care for the safety of their workmen. The servant had to assume the risk of injury, and the master took the chance of a suit for damages. It was to meet this precise situation and protect employes in such situation that this legislation was adopted. It imposes upon the master an absolute, specific duty, one which he cannot delegate, and against his neglect of which he ought not to be allowed to contract. If the employe must assume the risk of the employer's violation of the statute, the act is a delusion so far as the protection of the former is concerned. He is in the same condition as before it was passed. He is compelled to accept the employment. He must assume the risk. When he is killed or crippled, he and those dependent on him have no remedy, and the law is satisfied by the payment of a fine. The more completely the master has neglected the duty imposed upon him by statute for the servant's protection the more complete is his defense for the injury caused by that neglect. Justice requires that the master, and not the servant, should assume the risk of the master's violation of the law enacted for the servant's protection, and, in our opinion, this view is in accordance with sound principles of law."

This statement of the law accords with our views, and such we believe to have been the intention of the lawmakers in the enactment of this statute By the constitution of the state (section 2, art. 17), the legislature was directed to enact laws which should provide for the

adoption and use of appliances necessary to protect the health, and secure the safety of employes therein. Evidently chapter 80, Laws 1912, was the result of an attempt on the part of the lawmaking power to comply with this mandate of the constitution. To hold that the lawmaking power intended to do nothing more than to repeat in statutory form a duty which was already imposed upon the operator by the common law would convict it of doing a vain and useless thing-of enacting a law which was but "a delusion and a snare."

NOTE.-Statutory Duty of Master to Employes -Assumption of Risk.-There are so very many and various statutory duties imposed on employers and such an irreconcilable conflict in cases as to whether or not they mean to change or abolish the rule of assumption of risk by employe, that we have confined our investigation to this question according to the heading of this note and under statutes which do not expressly provide for this question.

The distinctio.. as to a miner's risks does not seem entirely to depend, in Illinois, at least, on express statutory provision, but somewhat on the mandatory requirement of its Constitution that there should be laws for the protection of mining employes. Carterville Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131.

In Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 19 L. R. A. (N. S.) 646, it was held that a miner does not by continuing at work after a master refuses to comply with a statutory duty to furnish necessary props to make a working-room safe, assume risk of injury therefrom. This conclusion was reached on general principles and not as distinguishing the mining act from other acts imposing statutory duties.

In Desserant v. Cerillos Coal R. Co., 178 U. S. | 409, 44 L. ed. 1127, 20 Sup. Ct. 967, instructions of the court below as to plaintiff continuing to work in a mine after he knew a statutory duty was not being complied with as to keeping it clear of standing gas, and thereby assuming risk of danger, were condemned as being opposed to principles announced by the Supreme Court in safety appliance cases. This was said to be an imperative duty by the mining company. "Congress has presented that duty (the legislation being for territories) and it cannot be omitted and the lives of miners committed to the chance that the care or duty of someone else will counteract the neglect and disregard of the legislative mandate." The fact that instructions referred to above were disapproved shows, that the "disregard" spoken of may even be by one who is injured or killed.

In Poli v. Numa Block Coal Co., 149 Iowa 104, 127 N. W. 1105, 33 L. R. A. (N. S.) 646, it is said there are two classes of statutes on this subject. "For example, a statute regulating the speed of railway trains or of street cars in cities or towns is meant primarily for the benefit of the general public in the use of the public ways and crossings, while a regulation which compels the operator of a mill or factory to place hoods

over his circular saws, or to box or cover his gearings, is meant primarily for the protection of his employes, whose duties expose them to contact with these dangerous instrumentalities. In cases of the first class, we have held that an employe may assume the risk of the known and habitual disregard of his employer of a statute, etc. * * * But the reasons which have been thought controlling in these cases have much less persuasive force when considered in connection with a case of the other class." There is then pursued the same character of argument as that set forth in the instant case in its excerpt from the Streeter case.

He

In Low v. Clear Creek Coal Co., 140 Ky. 754, 131 S. W. 1007, 33 L. R. A. 656, the ruling was somewhat qualified as thus the court said: "We think the safe rule is to hold, that unless the danger from the lack of props is not only imminent, but so obvious that an ordinarily careful man would not have worked under the conditions, the owner has the responsibility. having failed in his statutory duty, the liability for all consequences is upon him, unless the miner could see or know by ordinary care, that the situation was dangerous and imminently so. In other words, there is no assumption of risk by the laborer where the master neglects a statutory duty; but such laborer is still liable for his contributory negligence." This seems a sensible distinction.

In Fitzwater v. Warren, 206 N. Y. 355, 99 N. E. 1042, 42 L. R. A. (N. S.) 1229, it was stated by the writer of the opinion that his personal view was at variance with former New York decision that there was assumption of risk, but in a case where, though a defect be apparent. there is no assumption of risk if the defect may require judgment not possessed by the ordinary observer or servant to realize the danger therefrom. Therefore an inexperienced servant was not held to have assumed the risk. It was said: "The statute which the defendants violated was enacted for the express purpose of safeguarding the persons of employes. Where an employer deliberately fails to comply with the statute, the courts should be loath, except in a very clear case, to hold that the employe assumes the risk of his master's violation of law. Otherwise the beneficent results sought to be attained by the statute will fail to be realized."

In Curtis & Gartside Co. v. Pribyl, 38 Okla. 511, 134 Pac. I, 49 L. R. A. (N. S.) 471, in holding there is no assumption of risk where a master violates a statutory duty, cites Johnson v. Fargo, 184 N. Y. 379, 77 N. E. 288, 7 L. R. A. (N. S.) 537. 6 Ann. Cas. 1, 20 Am. Neg. Rep. 156, as holding that it was against public policy for an emplover and an emplove to contract for the latter to be relieved from his negligence and also reasoning by New York court in the Fitzwater case, supra, that: "If an express agreement could not relieve the master in the case cited. it does not seem clear how, by a merely implied contract, he can be relieved from the results of a direct violation of the statute."

The cases ses on this subject are so very numerous that it is tedious even to cite them, much more to discuss their reasoning. Of all of them, however, it seems to us that the Low case is possibly the most practical in the applying of such a statute. An employe is meant to have

some protection and negligence per se is imposed on the master. Anything short of willful misconduct in an employe exposing himself to injury ought not to count against him, or at least very plain contributory negligence as distinguished from assumption of risk. The statute ought to be construed as if it expressly stated there was no assumption of risk. C.

ITEMS OF PROFESSIONAL

INTEREST.

MEETING OF THE LOUISIANA STATE BAR

ASSOCIATION.

Lawyers of Louisiana are looking forward with anticipation to the next meeting of the State Bar Association which convenes at the city of Opelousas, May 5th, 1916, for a two days' session.

The orator of the day will be Judge Henry D. Clayton, of Alabama. Other speakers will be Hon. R. L. Tullis, Dean of the Louisiana State University Law School, who will speak on "Substitutions and Fidei Commissa; Impossible and Illegal Conditions Under the Civil Code of Louisiana;" Mr. Walker B. Spencer, who will lead a discussion on "The Complete Reorganization of the Judiciary;" Hon. Rufus E. Foster, who will speak on "The Federal Compensation Act;" and Mr. Philip S. Gidiere, who will speak on "Subrogation Under Policies of Fire Insurance Covering Cotton in Transit."

The ladies accompanying the party will be well taken care of. The entertainment features will include an informal reception at the Elks' Club and an automobile ride to St. Charles College, Grand Coteau.

Mr. W. W. Young, of New Orleans, La., the efficient secretary of the association, writes us that Judge Gilbert L. Dupre, of Opelousas, is in charge of the local arrangements and has provided ample accommodation in the expectation of entertaining a large representation of Louisiana lawyers.

CORRESPONDENCE.

THE BRANDEIS MUDDLE.

Editor of the Central Law Journal:

May I bring to your attention an error in the leading article of the Central Law Journal for March 24, 1916, entitled "The Brandeis Muddle," which says:

"It appears that the Harvard faculty is hopelessly divided on the issue, the majority, with

President Lowell as a mouth-piece, alleging his unfitness, while others, speaking through Arthur D. Hill and others, equally enthusiastic in favor of his qualifications, intellectually and otherwise."

The faculty of Harvard University, if that is what is meant by "Harvard faculty," has never expressed any opinion whatever on the matter. President Lowell, in signing a petition against the confirmation of Mr. Brandeis, spoke only for himself.

On the other hand, the faculty of Harvard Law School, including Dean Pound, expressed itself almost unanimously in favor of Mr. Brandeis, only one man opposing and one man pleading ignorance, having just returned from several years abroad.

THURLOW M. GORDON, Harvard Law School, 1911.

Wholly apart from the merits of the question of confirmation it is refreshing to be again confirmed in our assurance of the intellectual independence of the members of the faculty of Harvard University, a fact that, among other things, has made it one of the few really great institutions of learning in the world.

Mr. Brandeis is a product of the Law Department of Harvard University and the faculty of the law school have not found any reason to be ashamed of its work. Intellectually compared even with the great lawyers of Boston or New York, Mr. Brandeis would not suffer most by the comparison. He is easily recognized as one of the master legal minds of our generation and it is unfortunate, indeed, that any question should have been raised as to his fitness as Supreme Judge on ethical grounds.-EDITOR.]

HUMOR OF THE LAW.

When Lord Charles Beresford was a candidate for the representation of York in Parliament a position which he ultimately occupied his opponent was Sir Charles Furness. In his "Memoirs" Lord Charles recalls the following reminiscence:

"My brothers, Lord William and Lord Marcus, were helping me. Lord Marcus accompanied me to a meeting, and I told him that he must make a speech.

"I can't' he said. 'I don't know what to say.'

"I told him to begin, because he would surely be interrupted, and then, being an Irishman, he would certainly find something to say. Lord Marcus thereupon rose to his feet and a voice immediately shouted:

The idea that everybody is virtually defenseless against the gas company and the ice man apears to be taken as a universal joke. It crops out in unexpected places.

In a Western town the attorney for a gas company was making a popular address.

"Think of the good the gas company has done!" he cried. "If I were permitted a pun, I would say, in the words of the immortal poet, 'Honor the light brigade!'"

Whereupon a shrill voice came from the rear: "Oh, what charge they made!"-St. Louis Star.

BOOKS RECEIVED.

A Treatise on the Limitations of Actions at Law and in Equity. By H. G. Wood, author of "The Law of Nuisances," "Master and Servant," "Fire Insurance," "Landlord and Tenant," "Law of Railroads," etc. Third edition, by John M. Gould, Ph. D., author of "Waters," joint author of "Gould and Tucker's Notes on the U. S. Statutes," editor of Kent's Commentaries (14th ed.), etc. Fourth edition, revised and enlarged by Dewitt C. Moore, of the New York Bar; author of "Carriers," and "Fraudulent Conveyances." In two volumes. Price, $15.00. Albany, N. Y. Matthew Bender & Company. 1916. Review will follow.

In "Anecdotes of Bench and Bar" Mr. Arthur Engelbach tells the story of a carpenter who was subpoenaed as a witness on a trial for assault. One of the counsel, who was much given to browbeating the witnesses, asked him what distance he was from the parties when he saw the prisoner strike the prosecutor.

The carpenter answered, "just four feet five inches and a half."

"Pray tell me," said the counsel, "how is it possible you can be so very exact as to the distance?" "Why, to tell the truth," replied the carpenter, "I thought perhaps that some fool or other might ask me, and so I measured it."