been avoided by reasonable care and attention on the part of defendant, you will find for defendant." A direction of this sort was necessary to guard the jury against being misled by the testimony in relation to the difference in height between the main and switch rails. Reversed, and a new trial ordered. VALIDITY OF CONTRACTS BY WHICH EMPLOYEES WAIVE RIGHT TO RECOVER FROM EMPLOYERS FOR INJURIES WHICH MAY BE RECEIVED IN COURSE OF THEIR EMPLOYMENT. - The decided weight of authority in this country sustains the proposition that a contract, whereby an employee agrees in advance to relieve his employer from liability from injuries resulting from the latter's negligence, or that of his other employees, when he is by law responsible for their negligence, is void as against public policy: 2 Thompson on Negligence, 1025; 1 Cent. L. J. 485; Greenhood on Public Policy, 528; Roesner v. Hermann, 10 Biss. 486; Kansas Pacific R'y Co. v. Peavey, 29 Kan. 169; 44 Am. Rep. 630; Railway Co. v. Spangler, 44 Ohio St. 471; 58 Am. Rep. 833. In Roesner v. Hermann, 10 Biss. 487, Gresham, J., delivering the opinion, said: "When the employer's negligence in supplying his employee with unsafe machinery has caused the death of the latter, the law will not allow the employer to say, as in effect he does in this answer, 'It is true that my machinery was defective and unsafe, and my negligence caused the death of my employee, but I am not liable to those who have suffered from the loss of his life, because I had a contract with him which secured to me the right to supply him with unsafe and defective machinery, and to be negligent.' Such a contract is void as against public policy. If there was no negligence, the defendant needed no contract to exempt him from liability; if he was negligent, the contract set out in his answer is of no avail." Horton, C. J., in delivering the opinion of the court in Kansas Pacific R'y Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630, referring to the Kansas statute making a railroad company liable for the negligence of one employee causing injury to a co-employee, without regard to the negligence of the company in selecting or retaining the employee, said: "Now, if the statute was enacted for the better protection of the life and limb of railroad employees, it would be against public policy for the courts to sanction contracts made in advance for the release of this liability, especially when we consider the unequal situation of the laborer and his employer." And Owen, C. J., in delivering the opinion of the court in Railway Co. v. Spangler, 44 Ohio St. 471, 58 Am. Rep. 833, said: “The policy of our law being well settled, it only remains for us to inquire whether railroad companies may ignore or contravene that policy by private compact with their employees, stipulating that they shall not be held to a liability for the negligence of their servants, which public policy demands should attach to them. The answer is obvious. Such liability is not created for the protection of the employees simply, but has its reason and foundation in a public necessity and policy, which should not be asked to yield or surrender to mere private interests and agreements." In the case of Memphis and Charleston R. R. Co. v. Jones, 2 Head, 517, the owner of certain slaves hired them to the railroad company to do work on its road. The contract of hiring contained this stipulation: "And all risks incurred or liability to accidents whilst in said service is compensated for and covered by the pay agreed upon; the said railroad company assuming no responsibility for damages from accident or any cause whatever." This stipulation was held not to relieve the company from liability for any injury or loss arising or resulting from the willful wrong or gross negligence of the company or of its agents. The supreme court of Georgia, in the cases of Western and Atlantic R. R. Co. v. Bishop, 50 Ga. 465, Western and Atlantic R. R. Co. v. Strong, 52 Il. 461, Hendricks v. Western and Atlantic R. R. Co., 52 Id. 467, and Galloway v. Western and Atlantic R. R. Co., 57 Id. 512, held that a contract between a railroad company and its employee, so far as it does not waive any criminal neglect of the company or of its principal officers, is a legal contract, and binding upon the employee. These decisions have been severely criticised by Judge Thompson: See 2 Thompson on Negligence, 1025; and 1 Cent. L. J. 485. And they do not seem to have given satisfaction to the people of the state of Georgia; for in the year 1876, the legislature of that state passed the following act: "If any person employed in any capacity whatever by any railroad company doing business in this state shall, in the course of such employment, be guilty of negligence, either by omission of duty, or by any act of commission, in relation to the matters intrusted to him, or about which he is employed, from which negligence serious injury, but not death, occurs or happens to any human being, such as breaking or dislocating or straining the bones or joints of the body, wounding the internal parts of the body, fracturing the skull, wounding the organs of sight, hearing, or speech, so as to impair their use, such person shall be guilty of the offense of criminal negligence; and upon the conviction thereof, upon indictment or presentment, shall be punished by imprisonment in the common jail not less than three nor more than twelve months, or by work on the chain-gang not less than two nor more than six months, or by confinement in the penitentiary not less than one nor more than two years, in the discretion of the court. The examples of serious injury given in this section are not intended to restrain or confine the meaning of the words 'serious injury,' but simply as illustrations of the same": Ga. Code, 1882, sec. 4586 b. In the case of Cook v. Atlantic and Western R. R. Co., 72 Ga. 48, decided in 1883 under this act, the court held that although an employee of a railroad company may, by contract, waive his right to sue for injuries not arising from criminal negligence on the part of the company, or of its employees, yet any negligence, either of omission or commission, on the part of other employees of the road, in connection with their business, from which serious injury results, constitutes criminal negligence, and a contract waiving the right to sue for injuries resulting therefrom is contrary to public policy, and void. Blandford, J., who delivered the opinion of the court in that case, said: "No stipulation to waive any criminal neglect of the company is valid. The same is contrary to public policy, as declared by the statute. Every neglect which causes serious injury to any person by an agent, servant, or employee of a railroad company in this state is a crime by the laws of this state. And no release or waiver by any employee, or other person, of a railroad company on account of such neglect of its servants or agents, is binding upon the party making the same, but it is utterly null and void since the passage of the act of 1876." In the case of Darrigan v. New York etc. R. R. Co., 52 Conn. 285, it was queried whether a railroad company can by contract with its employee exempt itself from liability for its own negligence. But, as the question was not involved in the case, it was not decided. Wood says: "The master may exonerate himself from liability by expressly stipulating in the contract of 257 hiring that he shall not be held chargeable for injuries resulting from defects in machinery or the negligence of co-servants": Wood on Law of Master and Servant, sec. 415; 3 Wood on Law of Railways, 1493. The only authority cited by him in support of this proposition is the case of Western and Atlantic R. R. Co. v. Bishop, 50 Ga. 465, to which we have already referred. In 24 Albany Law Journal, 383, a preference is expressed for this view of the question. And this is no doubt the established doctrine of the English courts: Griffiths v. Earl of Dudley, L. R. 9 Q. B. D. 357. But, as has been shown, the current of American authority is the other way. Reason is clearly on the side of what, in view of the authorities, may be properly denominated the American doctrine on this question. It ought to be the policy of the state to preserve the lives of all its citizens. If that be the case, it is certainly contrary to public policy to permit them to contract away their lives and safety, and the more so when it is considered upon what unequal terms employers and employees generally contract. In all the states of the Union, except New York and New Jersey, where the question has been adjudicated, considerations of public policy have led the courts to decide that a common carrier cannot by contract with his customer absolve himself from liability for loss or damage resulting from the negligence of himself or of his agents or servants: See note to Cole v. Goodwin, 32 Am. Dec. 498 et seq.; note to Ingalls v. Bills, 43 Id. 367; note to Clarke v. Rochester etc. R. R. Co., 67 Id. 217; Alabama G. S. R. R. Co. v. Thomas, Sup. Ct. Ala., Feb. 1888; 32 Am. & Eng. R. R. Cas. 464; Little Rock etc. R'y Co. v. Talbot, 39 Ark. 523; St. Louis etc. R'y Co. v. Lesser, 46 Id. 236; Grogan v. Adams Exp. Co., 114 Pa. St. 523; Cooley on Torts, 2d ed., 825; Patterson on Railway Accident Law, 501. The state would seem to have as much interest in the preservation of the lives and safety of its citizens as in the preservation of their property intrusted to a common carrier. In Iowa, the code expressly enacts that no contract of a railroad company, by which it seeks to restrict its liability for injuries to an employee resulting from the negligence of its other employees, shall be legal or binding: Rev. Code Iowa, sec. 1307. But in Kansas Pacific R'y Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630, it was held that the omission from the Kansas act of a clause like that in the Iowa act did not empower a railroad company to evade its liability by contract. DUTY OF MASTER TO FURNISH SERVANT SAFE MACHINERY AND APPLIANCES: See Little Rock etc. R'y Co. v. Leverett, ante, p. 230, and note, where other cases are collected. CONTRIBUTORY Negligence, wHETHER MATTER OF DEFENSE: See Little Rock etc. R'y Co. v. Leverett, ante, p. 230, and note, where other cases are collected. AM. ST. REP., VOL. III.-17 CASES IN THE SUPREME COURT OF NEBRASKA. ASPINWALL v. SABIN. [22 NEBRASKA, 73.] EVERY PRESUMPTION IS IN FAVOR OF CORRECTNESS AND REGULARITY OF PROCEEDINGS Of courts of general jurisdiction, and error cannot be presumed. Bills of exceptions should therefore state affirmatively that they contain "all the evidence" submitted to the trial court. ATTORNEY'S LIEN NOT AFFECTED BY FRAUDULENT SETTLEMENT OUT OF COURT. In an action for divorce and alimony, the court made an order in the progress of the case, requiring the payment into court of a sum of money for attorneys' fees. Afterwards the parties to the action, collusively and fraudulently, and for the purpose of defrauding the attorney for the plaintiff out of the allowance made by the court for him, and with notice of an attorney's lien thereon in his favor, "settled and dismissed" the case. The attorney filed a motion to set aside the fraudulent settlement, and the court sustained the motion. No notice of the pendency of the motion was served upon the original plaintiff. Held, 1. That the motion was properly sustained, and the amount found due was properly ordered to be paid into court by the defendant; 2. That notice upon the original plaintiff of the pendency of the motion was unnecessary, as no relief was sought as against her, and it was not sought to affect her rights in any way. L. W. Colby and R. S. Bibb, for the plaintiff in error. Griggs and Rinaker, and R. W. Sabin, pro se, for the defendant in error. By Court, REESE, J. On the seventh day of February, 1885, Lena Aspinwall instituted her action in the district court of Gage County against Oliver C. Aspinwall, in which she prayed for a divorce and alimony. During the progress of the case, proceedings were had which resulted in an order being made 258 著 by the court allowing her fifty dollars per month for the main- "1. That there is due and owing to the said R. W. Sabin the sum of three hundred dollars, for his services as attorney for and on behalf of said plaintiff in and about the management of said cause. "2. That the said satisfaction, filed January 18, 1886, of the decree for temporary alimony heretofore rendered in this cause, was made by and between said Lena Aspinwall, plaintiff, and said O. C. Aspinwall, defendant, for the purpose of cheating and defrauding the said R. W. Sabin out of said amount due him for services performed by him as attorney of and for plaintiff in and about the management of this cause. 3. That the said satisfaction of said decree for temporary alimony is collusive, fraudulent, and void as against the said |