would, very likely, have been held to be acting at his peril, and hence absolutely liable to persons damaged, irrespective of negligence on his part. But this was not the view entertained sixtysix years later, after particular kinds of danger had become known, and methods of guarding against these dangers had come into general use. In 1873 the New York court held, in accord with the general United States doctrine, that the owner of an exploded stationary boiler was not liable unless proved negligent.22

Apart from exceptional cases, the use of a steam boiler is not, in modern American common law, regarded as extra-hazardous. The owner is not held liable for damage resulting from the explosion of the boiler, unless he is proved negligent. There is some controversy as to whether the fact of explosion furnishes evidence upon which a jury may, if no explanation is offered, find that the owner was negligent. But this relates only to the manner of proving negligence; and, although proof that the boiler exploded might, in some courts, justify the judge in refusing to nonsuit the plaintiff, yet the jury are not, by such proof, compelled to find as a fact that the defendant was negligent.23 And the doctrine - that in a case of boiler explosion a defendant is not liable unless the jury finds as a fact that he was negligent governs, not only as between the boiler owner and a stranger or a neighbor, but also as between the boiler owner and his own servant.24 Courts, in upholding this general doctrine, lay stress upon the frequency with which boilers are used, and the rarity of explosions as compared with the whole number of boilers in use.25

In December, 1911, there were upwards of twenty-four thousand steam boilers in Massachusetts which were subject to the provisions of the boiler inspection law. Only three steam-boiler explosions occurred in that state from October 1, 1907, to December 1, 1911. Apparently only one of these three exploding boilers had been

22 Losee v. Buchanan, 1873, 51 N. Y. 476. See also Marshall v. Welwood, 1876, 38 N. J. L. 339.

23 See Walker, J., in Stewart v. Van Deventer Carpet Co., 1905, 138 N. C. 60, p. 66. 24 See L. & N. R. Co. v. Allen, 1885, 78 Ala. 494, 501; Voigt v. M. P. C. Co., 1897, 112 Mich. 504; Kramer v. Willy, 1901, 109 Wis. 602; and Cavanaugh v. Haven Coal Co., 1908, 222 Pa. St. 150.

25 See Bradbury, C. J., in Bradford Glycerine Co. v. St. Mary's Woollen Mfg. Co., 1899, 60 Ohio St. 560, pp. 572–3; Birrell, C. J., in Bishop v. Brown, 1900, 14 Col. App. 535, P. 547.

inspected; and the explosion of this inspected boiler was caused by the engineer's screwing down the safety valve to pressure more than three times the pressure allowed by the state inspector on this boiler. In the report of an inquest held after the explosion, the District Judge said: ". . . I am informed that, out of the 39,572 boilers inspected by the department since 1893, this is the only boiler that has exploded." 26

We said ante, p. 350, that the Workmen's Compensation Acts purporting to limit recovery to damages incurred in extra-hazardous occupations really allow recovery in two classes of cases outside of that limit. We have just been dealing with Class 1, where some of the occupations specified in the statute are not, as to their usual features, extra-hazardous. Now we come to Class 2.

Class 2. Where a specified occupation is extra-hazardous only as to certain parts or branches of the undertaking, and an accident occurs while the employee is working on the non-hazardous part. The statutes do not, in terms, purport to confine the remedy to accidents due to the extra-hazardous features or branches of the business.27 Such statutes are generally construed as allowing a remedy for an accident occurring in that part of the employment which does not involve extra hazard, just as fully as for an accident due to one of the specially hazardous features of the business. The statute is construed as allowing a remedy for accidents which might have happened just the same in a business which did not involve any extra-hazardous features.

The initial English Act of 1897 (now superseded by the broader Act of 1906) applied only to certain specified occupations, which were not expressly described as extra-hazardous, but which are supposed to have been selected on the theory (whether correct or

I

26 Mr. McNeill, Chairman of the Massachusetts Board of Boiler Rules, in 1 Amer. Labor Legislation Review, pp. 78, 79.

27 In two states where the original Workmen's Compensation Acts applied only to alleged extra-hazardous occupations, the original acts contained special provisions which may have been intended to prevent recovery for accidents not due to the specially hazardous features of the business. See Illinois Act of June 10, 1911, §§ 21, 22; New York Act of 1910, ch. 674, § 217 (a). These original Illinois and New York acts are no longer in force; but provisions of a somewhat similar nature are contained in the Arizona Act of June 8, 1912, Laws of 1912, Second Session, ch. 14, §2; and see Constitution of Arizona, Article XVIII, § 8. Compare Washington Act of March 14, 1911, ch. 74, § 27.

incorrect) that they were all especially dangerous. It would have been possible for the courts to hold that this statute was intended to give a remedy only for such accidents as were due to the extrahazardous features of the business. But this view was not adopted by the British courts. On the contrary, they construed the Act of 1897 as imposing absolute liability for accidents occurring in all parts or branches of the general undertaking, including the nonhazardous parts as well as the parts involving special danger. The English Act of 1897 applies to employment "on or in or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished. . . ." In Maude v. Brook, L. R. (1900), I Q. B. 575, a workman engaged in plastering a new house fell from the landing at the top of the stairs and was killed. He was not using a scaffolding, nor was there any scaffolding in his immediate vicinity, but in other parts of the house other workmen were using an arrangement which was held to be a scaffolding. Held, that the widow of the deceased could recover, because the building was being constructed "by means of a scaffolding," although the accident was in no way connected with the scaffolding. Rigby, L. J., p. 580: " . . . I think it is not necessary that the accident should have happened by reason of the scaffolding- that is, it need not involve the falling of any one or anything on or from the scaffolding; if we once get a house being constructed by means of scaffolding, any accident happening to a workman employed by the undertakers upon that building would be within the act." In Halstead v. Thomson, 3 Scotch Session Cases, 5th Series (1900-1901), 668, recovery was allowed under the above clause in the Act of 1897, although no scaffolding was in use, or even erected, at the time of the accident. A scaffolding had been used before the accident and was used again after the accident; but at the date of the accident the materials of which it was composed were on the ground and not set up.28

As to some American Workmen's Compensation Acts an argument in favor of restricted construction finds more support in the language of the statute than in the case of the English Act of

28 See also Middlemiss v. Middle, etc. Committee, 2 Scotch Session Cases (1899-1900), 5th Series, 392; Blovelt v. Sawyer, L. R. [1904], 1 K. B. 271, and Prof. Bohlen's comments in 25 HARV. L. REV. 524.

1897. These American statutes apply only to certain specified occupations, which are expressly declared to be extra-hazardous; and the existence of special hazard is practically given as the reason for enacting such legislation. Take, for instance, § 215 of ch. 674, New York Laws of 1910.29

"This act shall apply only to workmen engaged in manual or mechanical labor in the following employments, each of which is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risks to the life and limb of workmen engaged therein are inherent, necessarily or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for accidents to workmen" (then specifying eight kinds of employment).

It could be argued with some plausibility that a legislature using the above language did not intend to allow recovery for accidents which were not due to the specially hazardous features of an occupation.30

But the chances are very much against the adoption of such a view by the courts. The interpretation given by British courts

29 This provision, in substance, has been inserted in the statutes of several states. As heretofore mentioned, the New York act was held unconstitutional in Ives v. South Buffalo R. Co., 1911, 201 N. Y. 271.

30 "If the object is to make employers who choose to engage in ultra-hazardous businesses answer for the injury caused to their employees by the exceptional nature of their business, there seems no good reason to hold them answerable for injuries due not to those exceptional risks, but to risks which would attach to any workman working in any business. On the other hand, there seems no particular justice in giving compensation to one workman because he is employed in a business which subjects him to peculiar dangers which have in fact not injured him, and to deny it to another injured in precisely the same way simply because, while his employment did subject him to the risk of the very nature from which he suffered, it did not also subject him to peculiar risks of a totally different sort, thereby becoming ultra-hazardous. If the act singles out servants in certain trades, because of the peculiar risks to which these trades subject them, as worthy of protection not granted other servants in less hazardous employment, it would seem a fair construction of the legislative intent that they were intended to be protected not from the risks which they ran as workingmen and to which all workmen in any employment are subject, but only from those risks which were peculiar to their exceptional employment."

Prof. Bohlen, 25 HARV. L. REV. 521, discussing the meaning of the requirement in both the English acts (1897 and 1906), that the injury to be compensated must be one "arising out of the employment." Compare Indianapolis, etc. Co. v. Kinney, 1908, 171 Ind. 612, 617-621.

to the English Act of 1897 is likely to exert great influence upon American judges. And this construction is practically followed in the Report of the United States Employers' Liability and Workmen's Compensation Commission, and also in a recent decision of the Supreme Court of the United States.

The "United States Employer's Liability and Workmen's Compensation Commission," when making their report on February 2, 1912, submitted the draft of a proposed bill; providing (inter alia) for compensation to "any employee" of an interstate railroad for accident arising out of and in the course of his employment.31 This would include employees not engaged in the actual operation of trains, or subject to any of the special hazards peculiar to railroad employment; e. g., it would include a ticket-seller or a clerk in the treasurer's office. The learned Commissioners in their Report 32 argue that the proposed statute is "not objectionable because including employees not engaged in the hazardous part of employment." They say: "The fact that every employee is not subject to these dangers is immaterial." They virtually assert that the justice and the constitutionality of the statute are not affected by this fact.33

A similar view is taken by the United States Supreme Court in Second Employer's Liability Cases, 223 U. S. 1, decided Jan. 15, 1912. The court (see page 52) sustained a statute imposing liability for the benefit "of all employees" of "carriers by railroad who are employed in interstate commerce"; although some of them "are not subjected to the peculiar hazards incident to the operation of trains or to hazards that differ from those to which other employees in such commerce, not within the act, are exposed.'

"' 34

31 Report of United States Commission, vol. 1, p. 107 et seq.

32 Vol. 1, pp. 50, 51.

33 The Report cites Louisville, etc. R. Co. v. Melton, 1910, 218 U. S. 36; and Mobile, etc. R. Co. v. Turnipseed, 1910, 219 U. S. 35, 40. But see Indianapolis, .etc. Co. v. Kinney, 1908, 171 Ind. 612, 617–621; and compare 218 U. S. 36, p. 57.

Mr. C. F. Randolph regards the court in the Melton case as saying, in effect, that the power to impose upon railways "a singular liability because of their singular hazard is not limited to workmen in the hazardous side of their business, but applies to all their employees." 2 Report United States Commission, 1457.

34 As to the power of Congress to classify, Van Devanter, J., said, p. 52: The constitution does not "condemn exertions of that power merely because they occasion some inequalities. On the contrary, it admits of the exercise of a wide discretion in