Before the enactment of this statute there was no federal law of negligence. The federal courts in the exercise of their jurisdiction in cases involving liability of railway companies to their employees, whether engaged or not in interstate commerce, applied the law of negligence as a part of the law of the state where the injury was occasioned. This statute, for the first time, creates a substantive federal right in favor of the employee, distinct from the right theretofore given him by the law of the state.14

The system of federal liability created by the act is exclusive of the law of the states upon the subject, which means that it is exclusive of the grounds of liability available to the employee under the state law, whether common-law or statutory, and of the grounds of defense, whether common-law or statutory, afforded by the law of the state to the interstate carrier. Just as the employee must look to the act for his cause of action, so the carrier must look to the act for its defenses. Unlike the liability under the law of the state, which originated in the common law and was subject to all the defenses available at common law, the system of federal liability is purely of statutory creation. The terms in which liability is imposed are exclusive of defenses which would defeat that liability.

There is no common law of the United States, except that in the construction of the Constitution and acts of Congress recourse may be had to the common law for the purpose of interpreting the technical terms employed, which otherwise would be unintelligible.15 The common law is essentially the law of the states. It exists as a part of the law of the states by virtue of its adoption by the states, and to the extent only that it is not in conflict with state institutions and is not repealed by state legislation. Although,

loss resulting from these casualties from 'those less able to bear it' and place it upon those who can, as the Supreme Court said in the Taylor case, 211 U. S. 281, 'measurably control their causes.' . . . The passage of the original act and the perfection thereof by the amendment herein proposed stand forth as a declaration of public policy to radically change, so far as congressional power can extend, those rules of the common law which the President in a recent speech at Chicago characterized as 'unjust."" See also Doherty on Employers' Liability Act, p. 61.

14 Thornton on Federal Employers' Liability Act, § 1, pp. 4-5, note.

15 Wheaton v. Peters, 8 Peters (U. S.) 591 (1834); Pennsylvania v. Wheeling & B. B. Co., 13 How. (U. S.) 518 (1851); Smith v. Alabama, 124 U. S. 465 (1888); Moore v. United States, 91 U. S. 270 (1875); Gatton v. Chicago, R. I. & P. R. Co., 28 L. R. A. 556 (1895).

when the question is one of general and not merely of local jurisprudence, the federal courts will apply their own construction of the common law, irrespective of the decisions of the state courts, they nevertheless do so in administering the common law as the law of the states.16

In states which have repealed the common-law defense of assumption of risk,17 the defense cannot be set up as a bar to recovery in any case whether arising under the act of Congress or out of purely intrastate service. In cases arising under the act of Congress in states where this defense has not been abolished, the defense is not available, for the reason that the act cannot be "pieced out" by the law of the state. In other words, if the act of Congress cannot, as is universally conceded, be "pieced out" by legislation of the states repealing the common-law defense, how can it be "pieced out" by state legislation originally adopting the common law, or by this principle of the common law after it has been repealed by the states? In Western Union Tel. Co. v. Commercial M. Co.,18 Mr. Justice McKenna said:

"We have seen that one division of the supreme court of the state was of the view that if the prohibition rested on the common law its validity could not be questioned. We cannot concede such effect to the common law and deny it to a statute. Both are rules of conduct proceeding from the supreme power of the state. That one is unwritten and the other written can make no difference in their validity or effect. The common law did not become a part of the laws of the states of its own vigor. It has been adopted by constitutional provision, by statute or decision, and, we may say in passing, is not the same in all particulars in all the states. But however adopted, it expresses the policy of the state for the time being only, and is subject to change by the power that adopted it. How, then, can it have an efficacy that the statute changing it does not possess?"

From the nature of legislation by Congress, in the exercise of its power to regulate commerce, such legislation is exclusive of the law of the states. The defenses permissible under the act must be found in the express or implied provisions of the act. The question, therefore, is not whether the common-law defense of assump

16 Smith v. Alabama, supra.

17 Hough v. Railway Co., 100 U. S. 213 (1879).

18 218 U. S. 406, 416 (1910).

tion of risk, as such, is available to the carrier; but whether it appears from the terms of the act that Congress intended to create, in favor of the carrier, a defense similar to that of common-law assumption of risk.

The object of the statute was to create in favor of the employee of a common carrier coming within its purview absolute liability for injury resulting "in whole or in part" from its negligence with respect to its physical instrumentalities, represented by its "cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment," or from the negligence of its human agencies, represented by its "officers, agents, or employees"; and to make it negligence per se for such carrier to violate "any statute enacted for the safety of employees." As a corporation can act only through its officers, agents, or employees, such "defects or insufficiencies" as may occur in its physical appliances will necessarily be attributable to its human agencies. The two grounds of liability will therefore overlap each other.

The purpose of Congress to create unconditional liability when the injury results "in whole or in part" from such negligence is manifest from the provisions of the third and fifth sections, "that the fact that the employee may have been guilty of contributory negligence shall not bar a recovery," and "that any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall, to that extent, be void."

The provisions of the third section, "that no such employee who may be injured . . . shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees, contributed to the injury," and of the fourth section, "that in any action brought against any common carrier under or by virtue of any of the provisions of this act, to recover damages for injuries to ... any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury," indicate the determination of Congress to enforce the requirements of "statutes enacted for the safety of employees," by exempting the employee in the one case from the imputation of contributory

negligence, and in the other from the defense that dangers resulting from such violation were among the "risks of his employment.' The theory that the effect of the fourth section is to adopt the common-law doctrine that the employee by continuing in the service assumed the abnormal risks resulting from a "defect or insufficiency," due to the negligence of the carrier, unless its conduct involved also a violation of a statute enacted for the safety of employees, proceeds upon a misconstruction of the words "risks of his employment," and an inadvertent leaving out of consideration of the relation between the common law of England and legislation by Congress in the United States.

The words of the fourth section, "risks of his employment," mean the ordinary risks inherent in the business, — the unavoidable risks which are intrinsic, notwithstanding the performance by the carrier of its personal duties. They do not include the "secondary and ulterior" risks arising from abnormal dangers due to the employer's negligence.

The object of this section was not to adopt by implication the common-law defense of assumption of the risk of such abnormal dangers; its object was in express terms to exclude the defense which, before the passage of the act, was available to the carrier in determining what are the "risks of his employment" assumed by the employee.

Before the enactment of this statute, the carrier might exempt itself from liability under the common-law doctrine of the "choice of methods." The common-law duty of the master was only to exercise ordinary care to provide the servant with reasonably safe appliances. He was not required to use any particular appliance. Independently of the Safety Appliance Acts, the selection by the master of his appliances was a choice in which the courts would not undertake to control his discretion; it was not incumbent upon him to choose this or that specific appliance, but only to exercise ordinary care to provide reasonably safe appliances.19

19 In Norfolk & W. Ry. Co. v. Cromer, 101 Va. 667, 671, 44 S. E. 898, 899 (1903), the court thus states the common-law doctrine of the employer's choice of methods: "Courts and juries cannot dictate to railway companies a choice between methods, all of which are reasonably adequate for the purpose to be subserved"; and this doctrine has been applied to relieve the employer of civil liability even when the injury resulted from a violation of a safety statute.

In Nottage v. Sawmill Phoenix, 133 Fed. 979, 981 (1904), where the safety appli

When it is considered that the first section imposes liability only for negligence, the purpose of the fourth section to extend that liability becomes apparent. The word "negligence" is a commonlaw term. It is therefore to be construed according to its commonlaw meaning. The act does not make the carrier an insurer of its employee's safety. By the first section it makes the carrier unconditionally liable for the negligence of its officers, agents, or employees and for its negligence with respect to its appliances. But at common law the authorities are in conflict as to whether the violation of a "statute enacted for the safety of employees" is negligence.20 If it was not negligence, that is, if it involved no breach of duty to the employee, the risk of injury therefrom was a "risk of his employment." To remove doubt on this point and to make the violation of such a statute negligence per se under the system of federal liability, the fourth section provides that the employee "shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury."

Let us consider more closely the significance of the words "risks of his employment." It is to be observed that the statute nowhere uses the phrase "assumption of risk." The words of the statute

ance act of Washington imposed a penalty for its non-observance, but contained no language similar to that of the fourth section of the act of Congress, the court said: "This is a penal statute, enacted by the Legislature in the exercise of the police power of the state, and it contains no provision purporting to affect in any way the rules of law applicable to civil actions. It gives no hint of an intention to confer upon injured employees any new right enforceable in an action to recover damages, nor does it express a legislative intent to change the common law by abolishing defenses recognized by the common law."

In Glenmont L. Co. v. Roy, 126 Fed. 524, 528 (1903) (contra, Narramore v. Cleveland, C. C. & St. L. Ry. Co., 96 Fed. 298 (1899)), which involved a similar statute, in the opinion delivered by Judge Sanborn and concurred in by Judge (now Mr. Justice) Van Devanter, it is said:

"The master is not required to supply the best, newest, or safest appliances to secure the safety of his servants; nor is he bound to insure the safety of the place or of the appliances he furnishes. His duty in this respect is discharged when he has exercised ordinary care to furnish a place and appliances reasonably safe and suitable for the use of his employees. . . . The factory act of Minnesota, which requires employers to guard or fence dangerous machinery so far as possible, does not abolish the defense of assumption of risk. It does not deprive parties of their right to contract regarding the risks of their avocations."

20 5 Labatt on Master and Servant, 2 ed., § 1909.