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stated that none of these Acts referred to headlights, and, said the court, "The intent to supersede the exercise of the state's police power with respect to this subject, cannot be inferred from the restrictive action which thus far has been taken. ''185 This appears a somewhat narrow view. Congress has prescribed certain regulations as to the equipment of railway locomotives used in interstate transportation. Presumably, such regulations are all that in the opinion of Congress are necessary. The fact that Congress has not prescribed regulations for each part of the locomotive does not indicate that the "possession of the field" has not been taken. A state law should not lightly be set aside, and every presumption should be indulged in favor of its validity, but state regulations of the same instrumentality of commerce that has been regulated by Congress, although of a different part of such instrumentality, does invade the field already occupied by federal regulation, and in which, as has so frequently been said by the Supreme Court, the national authority is paramount and indivisible. The decision of the Supreme Court holding void the statute of the state of Indiana requiring grab-irons and hand-holds on cars, seems to accord with the text.186

The decision of the Supreme Court on the hand-hold law of Indiana indicates that with present federal statutes such state laws are invalid. In all cases the state laws must not infringe the due-process clause of the Constitution of the United States, 187

§ 33. Laws Limiting or Enlarging the Common-Law Liability of Carriers.-The question of the right of a railroad company to limit by contract its common-law liability as a carrier is one of general law upon which the Supreme Court of the United States will exercise its judgment. It is none the less within the province of the states and any state may pass laws on the subject. Therefore, as to transportation within a

185 Atlantic C. L. R. Co. v. Georgia, 234 U. S. 280, 58 L. Ed. 1312, 34 Sup. Ct. 829.

186 So. Ry. Co. v. Railroad Com. of Ind., 236 U. S. 439, 59 L. Ed. 661, 35 Sup. Ct. 304.

187 Vandalia R. Co. v. Public Serv. Com. of Ind., 242 U. S. 255, 61 L. Ed. 276, 37 Sup. Ct. 93. See also note to Annotated Law Edition.

state, the legislature of such state may provide that a contract of a common carrier by which it exempts itself from its common-law liability is void.188

The statute of Virginia provides:

"When a common carrier accepts for transportation anything directed to a point of destination beyond his own line he shall be deemed thereby to assume an obligation for its safe carriage to such point of destination, unless, at the time of such acceptance, such carrier be released or exempted from such liability by contract in writing signed by the owner or his agent."

Suit was brought against the carrier issuing the bill of lading to recover for the loss of goods shipped from Virginia to Louisiana. The carrier depended on a clause in its bill of lading, not signed by the shipper, exempting it from liability for loss beyond its own line. The shipper relied on the statute, which statute was sustained by the Supreme Court.189 Section 20 of the Interstate Commerce Act, it will be remembered, contains a clause similar to the Virginia law, supra. (Post, Sections 557, 558.)

A law of Missouri similar to the Virginia law was also sustained by the Supreme Court of the United States.190

The refusal of a state court to hold valid a provision of a bill of lading limiting the carrier's liability to a stated sum does not violate any of the provisions of the Interstate Commerce Act.191

A provision of the law of Georgia, applicable both to interstate and intrastate commerce, that a carrier, in order to exempt itself from liability beyond its own line, should inform the shipper, in writing, when, where, how and by which carrier the freight was lost or damaged was held invalid by

188 Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, 42 L. Ed. 688, 18 Sup. Ct. 289. See notes in L. Ed.

189 Richmond & A. R. Co. v. Patterson, 169 U. S. 311, 42 L. Ed. 759, 18 Sup. Ct. 335.

190 Missouri, K. T. Ry. Co. v. MeCann, 174 U. S. 580, 43 L. Ed. 1093, 19 Sup. Ct. 755.

191 Penn. R. Co. v. Hughes, 191 U. S. 477, 48 L. Ed. 268, 24 Sup. Ct. 132.

the Supreme Court.192 The Georgia case is distinguished from the Virginia case (cited Note 189, ante), although the Virginia case required the carrier to show that the loss did not occur on its own line, when the shipper had signed a contract which limited the liability of the carrier to its own line. It would seem, therefore, that the Georgia law is just a little beyond the boundary line that marks the difference between a reasonable and an unreasonable regulation. In considering the Virginia case, the court said:

"These views dispose of the substantial questions which the case presents, for the contention which arises on the concluding sentences of the statute, imposing upon a carrier a duty where the loss has not happened on the carrier's own line to inform the shipper of this fact, is but a regulation manifestly within the power of the state to adopt.'

Subsequent to the decision of the Supreme Court of the United States, the Supreme Court of Georgia held that the Georgia statute applied only to intrastate commerce and, so limited, was valid.193

A law of Kansas requiring that weights be specified in bills of lading and that the weights so specified should be conclusive, was held not to violate the commerce clause of the Constitution of the United States, but to be void as denying due process of law.194 As to shipments in interstate commerce, such law would be void, since the legislation extending the Acts to Regulate Commerce.

While prior to the Hepburn Act a legislative prohibition of any contract in a bill of lading limiting the time in which to sue to less than two years was held valid as to an interstate shipment, such state law it is believed is now invalid when applied to interstate commerce.195

192 Cent. of Ga. R. Co. v. Murphey, 196 U. S. 194, 49 L. Ed. 444, 25 Sup. Ct. 218, reversing same case, 116 Ga. 863, 43 S. E. 265, 60 L. R. A. 817.

193 So. Ry. Co. v. Ragsdale, 119 Ga. 773, 47 S. E. 179; Davis v. Seaboard A. L. Ry. Co., 136 Ga. 278, 71 S. E. 419; Seaboard A. L. Ry. Co. v. Davis, 139 Ga. 547, 77 S. E. 795.

1.94 Missouri, K. & T. Ry. Co. v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. A. 765, citing Gulf, C. & S. F. Ry. Co. v. Dwyer, 75 Tex. 572, 12 S. W. 1001, 7 L. R. A. 478.

195 Reeves v. Tex. & P. R. C. (Tex. Civ. App.), 32 S. W. 920; Gulf, C. & S. F. Ry. Co. v. Eddins, 7 Tex. Civ. App. 116, 26 S. W. 161; Missouri, K.

It is true that the so-called Carmack Amendment contained in the Hepburn Act relates to limitations of liability and not limitations as to time in which to sue; but the subject of the contract for interstate shipments is included within the amendment, and it may well be argued that now Congress has taken possession of the field. The question has not been determined, but it would seem that an "interstate contract of shipment * is withdrawn from the field of state law.' 196

**

The Cummins Amendments, as they were under the Act of August 9, 1916,197 prescribed a minimum time for giving notice of loss or damage, for making claims, and for filing suits. Statutes of a state in conflict with this statute are invalid. In this respect Transportation Act, 1920 (Sections 557, 604, post) makes no change from the Cummins Amendments. However, an Act approved April 23, 1930, amends paragraph (11), Section 20, of the Interstate Commerce Act so as to extend the time for filing claims.

§ 34. Same Subject-Liability to Employees. The first Employers' Liability Act, that of June 11, 1906, chap. 3073, 34 Stat. 232, was declared by the Supreme Court of the United States to be unconstitutional, because, as construed, it applied not only to employees of carriers engaged in interstate, but also to employees of carriers engaged in intrastate, commerce. Whether the Act violated the Fifth Amendment was not decided, but reference was made to decisions of the court holding valid, under the Fourteenth Amendment, state laws making a special regulation as to a carrier's liability to its employees.

Later, on April 22, 1908, the present Employers' Liability

& T. Ry. Co. v. Withers, 16 Tex. Civ. App. 506, 40 S. W. 1073.

196 Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 57 L. Ed. 690, 33 Sup. Ct. 397; Kansas C. S. R. Co. v. Carl, 227 U. S. 639, 57 L. Ed. 683, 33 Sup. Ct. 391; Chicago R. I. & P. R. Co. v. Cramer, 232 U. S. 290, 58 L. Ed. 697, 34 Sup. Ct. 383, reversing same styled case, 153 Iowa 603,

133 N. W. 387. See Secs. 35 and 36, post.

197 Acts, March 4, 1915, Chap. 176, 38 Stat. 1196; Aug. 9, 1916 Chap. 301, 39 Stat. 441; U. S. Comp. Stat., Vol. 8, Sec. 8604 a; McCaull-Dinsmore Company v. C. M. & St. P. R. Co., 252 Fed. 664, affirmed 260 Fed. 835, 171 C. C. A. 561; 253 U. S. 97, 64 L. Ed. 801, 40 Sup. Ct. 504.

Act was approved and this Act has been held valid by the Supreme Court. 198

In the labor laws of the United States, contained in the twenty-second annual report of the Commissioner of Labor, will be found all the state laws similar to the Federal Employers' Liability Act up to the time that report was prepared. Since then, other states have passed laws applying to intrastate commerce substantially the same as that contained in the federal Act. That the states may do this is clearly shown in Howard v. Illinois Central R. Co., (cited in Note 198, ante.) That these state laws are valid can, therefore, be safely assumed. It is always a question of fact, in each case, as to whether or not the commerce at the time an injury may occur is within the one or the other law. Questions of jurisdiction will also be determined upon the facts in each case. It tends to harmony, therefore, that the states are adopting the federal statute. The same carrier should not, in performing the same kind of service, be subjected to conflicting laws, merely because, in one case, the injury is caused by a car or train engaged in interstate commerce and in the other the car or train is engaged in intrastate commerce. In most cases,

198 Employers' Liability cases, Howard v. Illinois C. R. Co., 207 U. S. 463, 52 L. Ed. 297, 28 Sup. Ct. 141; Missouri P. R. Co. v. Mackay, 127 U. S. 205, 32 L. Ed. 107, 8 Sup. Ct. 1161; Minneapolis & St. L. R. Co. v. Herrick, 127 U. S. 210, 32 L. Ed. 109, 8 Sup. Ct. 1176; Chicago K. & W. R. Co. v. Pontius, 157 U. S. 209, 39 L. Ed. 675, 15 Sup. Ct. 585. In Missouri P. R. Co. v. Castle, 224 U. S. 541, 56 L. Ed. 875, 32 Sup. Ct. 606, a State Employers' Liability Act passed prior to Act 1908 was held valid. See also Tulis v. Lake E. R. Co., 175 U. S. 348, 44 L. Ed. 192, 20 Sup. Ct. 136; Louisville & N. R. Co. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 Sup. Ct. 676; Chicago, I. & L. Ry. Co. v. Kackett, 228 U. S. 559, 57 L. Ed. 966, 33 Sup. Ct. 581, and cases cited; Minnesota Rate Cases, 230 U. S. 352, at pp.

408, 409, 57 L. Ed. 1511, 33 Sup. Ct. 729; Mondou v. New York, N. H. & H. R. Co. (Second Employers' Liability Cases), 223 U. S. 1, 56 L. Ed. 327. Prior to 1908 as to territories: Gutierrez v. El Paso N. E. R. Co., 215 U. S. 87, 54 L. Ed. 106, 30 Sup. Ct. 21. State law regulating hours of labor of interstate railroad employees invalid, Erie R. Co. v. New York, 233 U. S. 671, 58 L. Ed. 1149, 34 Sup. Ct. 756, but same law requiring payment of wages semi-monthly is valid: Erie R. Co. v. Williams, 233 U. S. 685, 58 L. Ed. 1155, 34 Sup. Ct. 761. Repeal by state law of common law rule of nonliability for negligence of a fellow servant valid whether the business affected "is connected with interstate commerce or not," Swayne & Hoyt v. Barsch, 226 Fed. 581, 141 C. C. A. 337. Act, 1906, supra, valid.

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