Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-05-24

Marcn Il, 1879.
THE LAW AS TO RAILROADS
KNOWN AS THE "FELLOW SER
Want ACT IS y PUBLIC ACT.
AND CONSTITUTIONAL. IT DOES
NOT DEPRIVE THE COMPANY OF
THE DEFENSE OF CONTRIBU-
TORY NEGLIGENCE OF THE SER
WANT INJURED,
The plaintiff was injured while
brakeman in the defendants service.
since the ratification of the law known
as the Fellow Servant Act" which
makes all railroad companies operating
In North Carolina liable for the negli-
Scncc OF its servants by which q fell
low servant is injured. The injury was
alleged to be caused by the negligence
OF a brakeman on another train who
mad left n switch open. The defendant
Claimed the said law was a private law
and should have been pleaded, and that
1t was unconstitutional. There was q
Judgment Tor plaintiff and defendant
appealed. The court says:
AS 10 the first ground of exception.
the act is so plainly and clearly
a public statute that it is q
mystery why it was placed among
the private acts. But by whom
ard for what purpose this was done is
iinmaterial. Whether n statute is pri-
Nate or public depends upon it's con-
tents. and not upon the conduct or
judgment of the person who directs the
compilation in which it shall he pub
ASned. Indeed. part of an act may be
puhlic and part thereof IL private act.
beshE II publiu statute. the fact that it
was printed among the private acts
ana not make it incumbent upon the
plaintim to plead it.
As TO the other question learnedly
argued in the brief, whether, under the
ie'loW servant statute, the defendant
can plead contributory negligence on
inc part OF the servant injured. there
can be no doubt. The statute goes no
lurtner than to remove the defense
mat the injury was sustained by the
ncEliEence of a fellow servant. TIL.
defendant does not take his own arrI-
ment on this point seriously fo,. n
lact. he sets up the plea of contributory
negligence, and an ISSUE thereon was
submitted to the jury and found in fay
or the plaintiff.
we sec no ground for the defendants
contention that tho act in question vim
lates article l. section Z, of the North
carolina constitution, by "confcrrinc
eaciuSiVc privileges upon any set of
men. Inc law cXempting n master
from liability to servant for the neg
i'seNcc oil Il fellow servant Is by judicial
construction and of comparatively rn
cent origin. It's history is traced in
HoDbs V. Railroad Co, 107 n. C. us
extent has been differently outlined in
c!nerent states by judicial construction
"hu III several states it has been re-
str'eted by Legislative enactment so as
i'ot 10 extend to employees of railroad
companies, as has now been done in
inns state. AS the original ground of
INC decision was that a servant l,raw
inc character for care of his fellow
servant, and entered service with n
we" 10 mat risk. the courts Themselves
might logically have long since modi-
tic IuIihS not 10 extend to an em-
lily lIie'rt INC mat OF railroads, embrace
.nh ni"ny thousands of employees, and
ny Nposli's us servants to peculiar risks.
ne lcIloW servant act now in question
apples 10 well-defined class. and on
cr"tcs equally as TO all within that
S'"Sa. indeed, any act Incorporating n
company confers special PRIVILEGES
upon the stockholders, but no, aycIu'
siVe privileges. within the meaning of
me constitution. We fail to see I'm This
act any comforting of exclusive nrivi-
ieses' W!thin the language or intent
81 me constitutional provision in ques-
tion; and similar fellow servant acta
almost in totiden verbs, in Other
States, have been held by the Federal
supreme Court 10 be not in conn;ct
with the equal protection" clause of
the fourteenth amendment. The attack
or the defendants counsel upon the
stitutionali;y of the fellow servant
act Has been delivered with force and
ABILITY, but we cannot perceive that
the reasoning in the above decisions or
our highest Federal court is otherwise
than sound. Affirmed.
PEOPLE. &C. V. BOARD OF EDUCA-
TION.