a. Nature and extent; master's duty. lation of the statute. Norman v. VirginiaPocahontas Coal Co. 31 L.R.A. (N.S.) 504, 68 W. Va. 405, 69 S. E. 857. h. Deception by a minor as to his age is no defense in an action to hold the master a. A master cannot be charged with negligence in employing a minor to work on dangerous machinery in violation of the liable for injury to him while employed terms of a statute making it a misdemeanor without the certificate prescribed by statto do so, if, in the exercise of proper vigi-ute as a condition of the employment of a lance and due caution, he was led to be- Coal Co. L.R.A.1915F, 1082, 249 Pa. 162, 94 person of his age. Krutlies v. Bulls Head lieve that the employee was above the statu(Annotated) tory age. Koester V. Rochester Candy Works, 19 L.R.A. (N.S.) 783, 194 N. Y. 92, 87 N. E. 77. Atl. 459. § 83. Duty after injury sustained. Duty to care for injured seamen, see SEAMEN, §§ 7, 8. § 84. to release employee caught in machinery. b. The erroneous belief of the master that a minor is above the statutory age will not remove the bar of the statute against his employment, where the minor, at the time a. A proprietor of a laundry, after noof his employment, was not asked his age, tice that an employee has caught her fingers and did not know that it had been misrep-between the rollers of an ironing mangle resented. Beghold v. Auto Body Co. 14 L.R.A. (N.S.) 609, 149 Mich. 14, 112 N. W. 691. which she is operating, is bound to exercise ordinary care to release her and alleviate her suffering; and the fact that the c. A certificate by the proper officer that employee contributes to the injury by her a minor is over the age of sixteen, and own negligence in assuming the risks of needs no certificate to justify his employ-opeating the machine does not affect the ment, is no defense to one who employs him rule. Raasch v. Elite Laundry Co. 7 L.R.A. if he is in fact under the age of sixteen, and (N.S.) 940, 98 Minn. 357, 108 N. W. 477. the statute forbids the employment of (Annotated) persons under that age unless they present b. Whether the proprietor of a laundry, a prescribed certificate of information. after notice that an employee had caught Krutlies v. Bulls Head Coal Co. L.R.A. her fingers between the rollers of an iron1915F, 1082, 249 Pa. 162, 94 Atl. 459. ing mangle which she was operating, exerd. One about to employ a minor cannot cised ordinary care to release her and to rely alone on his own representation or that alleviate her suffering, is a question for the of his parents as to his age in order to ab-jury, where he started the machine, which solve himself from liability for negligence in case the employee is injured in his service and is actually of such an age that the statute makes it a misdemeanor to employ him. Koester v. Rochester Candy Works, 19 L.R.A. (N.S.) 783, 194 N. Y. 92, 87 N. E. 77. had been stopped, thereby drawing her hand further in and greatly increasing the injury. Raasch v. Elite Laundry Co. 7 L.R.A. (N.S.) 940, 98 Minn. 357, 108 N. W. 477. c. Ignorance of an employer of the technical mechanism of a machine, which prevents his releasing an employee who has been caught therein through his own negligence, as quickly as he otherwise could have done, whereby the injury to the em ployee is aggravated, will not render him liable for the injury, if he did all he could to effect the release. Stager v. Troy Laundry Co. 53 L.R.A. 459, 38 Or. 480, 63 Pac. § 85. to provide bandages, stretcher, etc. e. That a master employed a child which the statute forbade him to employ because of its tender age, in good faith, and upon the express representation of the child's parent that it was over the prescribed age, will not absolve him from liability for injury to the child while it is at work, although the accident is of such a nature that had the child not been under age, as- 645. sumption of risk or contributory negligence would have been available as a defense. Glucina v. F. H. Goss Brick Co. 42 L.R.A. a. Breach by a miner of the statutory (N.S.) 624, 63 Wash. 401, 115 Pac. 843. duty to keep bandages, oil, stretchers, and (Annotated) blankets for the use of persons injured in f. A minor whose age is falsely represent the mine will give a right of action to an ed with his knowledge and acquiescence, for employee injured thereby, although the stat the purpose of securing employment for him, is not estopped, in an action against provides no remedy for failure to comply ute provides no penalty for its breach, and his employer to recover damages for per- with its terms, and the primary injury sonal injuries, from showing that he was under the age at which the statute per- mine owner was responsible. Wolf v. Smith, was not due to negligence for which the mitted him to, be employed. Braasch v. Michigan Stove Co. 20 L.R.A. (N.S.) 500, 9 L.R.A. (N.S.) 338, 149 Ala. 457, 42 So. 153 Mich. 652. 118 N. W. 366. (Annotated) g. That a child employed in violation of a statute misrepresents his age to the employer does not preclude him from holding the employer liable for injury due to vio 824. (Annotated) § 86. to provide transportation to home or hospital. a. Upon failure of a railroad company promptly to furnish an injured employee II. Liability of master for injuries to servant. a. Nature and extent; master's duty. while in the performance of his duties that he is physically or mentally incapable of procuring assistance for himself, and aid is necessary to save his life, although the injury was not caused by the fault of the employer. Hunicke v. Meramec Quarry Co. L.R.A.1915C, 789, 262 Mo. 565, 172 S. W. (Annotated) free transportation to its hospital, to which he is entitled under his contract, he cannot, in case he has in his possession the means of paying for the transportation, hold the company liable for pain and suffering due to delay in reaching the hospital. St. Louis S. W. R. Co. v. Reagan, 7 L.R.A. (NS.) 997, 79 Ark. 484, 96 S. W. 168. (Annotated) b. A railroad company is not bound to carry to his home one of its employees whose feet have been frozen by exposure to severe cold while in the course of his employment. King v. Interstate Consol. Street R. Co. 79 L.R.A. 924, 23 R. I. 583, 51 Atl. 301. (Annotated) to provide surgical or medi § 87. cal aid. Authority to employ physician and liability for medical services, see ante, §§ 2, 29. Physician as master's servant, see ante, § 5 k-m. Authority of employee to bind employer by calling physician, see ante, § 29 b, c. Right to terminate liability on contract to care for servant in hospital, see CONTRACTS, § 519 r. Burden of showing competency of physician employed to care for injured employee, see EVIDENCE, § 195 b. Evidence in action against master for malpractice of physician, see EVIDENCE, § 1393 v. Notice to master of reputation of physician employed to treat servant, see NOTICE, § 10 a. Duty to furnish medical attention to seamen, see SEAMEN, §§ 7, 8. a. Extensive review of cases on the duty of employer to furnish medical aid to an employee when the latter is so badly injured that he cannot care for himself. Hunicke v. Meramec Quarry Co. L.R.A. 1915C, 789, 262 Mo. 565, 172 S. W. 43. b. A master is not, in the absence of some stipulation, under any legal obligation to furnish medical attendance for a servant who falls sick while engaged in his duties. Norton v. Rourke, 18 L.R.A. (N.S.) 173, 130 Ga. 600, 61 S. E. 478. c. An employer is not liable for injuries resulting from failing to promptly furnish medical attendance to one injured in his employment, even though he is responsible for the original injury. Davis v. Forbes, 47 L.R.A. 170, 171 Mass. 548, 51 N. E. 20. d. While a corporation is not responsible generally for medical or surgical aid to a sick or injured employee, it is obligated to render an employee such assistance in extreme cases, where immediate attention is required to save life or prevent great in jury. Vanderboget v. Campbell Mill Co. L.R.A.1915C, 808, 82 Wash. 602, 144 Pac. 905. e. A corporation whose employee is engaged in dangerous business for it is liable for his death through its failure to use reasonable diligence to furnish him with sur· gical aid upon his being so badly injured 43. f. The liability of a master for the death of an employee through its failure to furnish him with surgical aid when he is so badly injured that he is incapacitated from securing it for himself cannot be made to depend upon the ability of the jury to deter mine whether or not death would have ensued even though proper medical assistance had been furnished but liability exists if the evidence shows that in all reasonable probability the master's failure was the proximate cause Meramec Quarry Co. L.R.A.1915C, 789, 262 Mo. 565, 172 S. W. 43. of death. Hunicke V. g. The duty of a railroad company to provide medical or surgical attendance for an injured employee, in the absence of contract, can arise only in a case of strict necessity and urgent exigency, and expires with the emergency. Ohio & M. R. Co. v. Early, 28 L.R.A. 546, 141 Ind. 73, 40 N. E. (Annotated) 257. h. The conscious and deliberate choice of an injured employee while in possession of his mental faculties, of the time when, place where, and person by whom he will be treated, relieves the master of any liability for failure to provide other treatment. Ohio & M. R. Co. v. Early, 28 L.R.A. 546, 141 Ind. 73, 40 N. E. 257. i. Liability of a railroad company for failure to provide for an injured brakeman is not shown where the best medical treatment that could be obtained at the little town where he was injured was procured, and he was removed as soon as possible with his intelligent and conscious consent, without any objection of the physicians who had attended him thus far, to another town where a place was provided for him and competent surgeons were awaiting him, but he insisted on being taken, still farther, to the town where he lived, but died soon after reaching the place from loss of blood on the way. Ohio & M. R. Co. v. Early, 28 L.R.A. 546, 141 Ind. 73, 40 N. E. 257. § 88. Employer's liability for malpractice. Contributory negligence of employee in submitting to physician's care, see post, § 319. Application of doctrine of res ipsa loquitur, see EVIDENCE, § 311 u. Evidence of physician's reputation to show employer's knowledge of incompetency, see EVIDENCE, § 1160 b. Liability as regards hospital maintained for employees, see HOSPITAL, § 5. Liability of master for negligence of physician employed to treat servant, see NOTICE, § 10 a. II. Liability of master for injuries to servant. a. Nature and extent; master's duty. Release of employer from liability for in- | physician to treat employees when ill or injuries as bar to action against em-jured, is not liable to an employee for the ployer's physician for malpractice, see malpractice of the physician, if it uses orRELEASE, § 8. Liability for improper treatment of injured a. Selecting surgeons skilled and competent in their profession, and placing them in attendance upon an employee injured in his service, discharge every duty which the master owes in regard to the curing of such injury; and he is not liable for the mistakes which they may subsequently commit. Quinn v. Kansas City, M. & B. R. Co. 28 L.R.A. 552, 94 Tenn. 713, 30 S. W. 1036. b. A master who has selected a competent physician to treat his employee may rely upon the presumption of competency until notice of a change. Guy v. Lanark Fuel Co. 48 L.R.A. (N.S.) 536, 72 W. Va. 728, 79 S. E. 941. dinary care in his selection, and is not promoting any interests of its own in the transaction, since it will be regarded as merely administering a charity. Texas C. R. Co. v. Zumwalt, 30 L.R.A. (N.S.) 1206, 103 Tex. 603, 132 S. W. 113. (Annotated) h. An employer who retains from the wages of his employees a fund to secure medical attention for them in case of in jury, which he undertakes to procure, is i. A master who employs a physician to treat his employees, and collects small monthly fees from their wages, all of which he turns over to the physician as his compensation, is not liable for the physician's malpractice, unless he was negligent in selecting or retaining him. Guy v. Lanark Fuel Co. 48 L.R.A. (N.S.) 536, 72 W. Va. c. A carrier having used reasonable care in his selection, is not chargeable with the want of skill in a physician or surgeon whom it calls for an injured employee, even where the law requires a company trans-728, 79 S. E. 941. porting immigrant passengers to carry a physician. Nicholson v. Atchison, T. & S. F. Hospital Asso. L.R.A.1916D, 1029, 97 Kan. 480, 155 Pac. 920. d. A corporation which voluntarily provides a physician for injured or sick employees, whose services they are free to reject or accept, is liable only, if at all, for negligence in the selection of the physician, and not for his negligent or tortious acts in the treatment of those who accept his services. Pittsburgh, C. C. & St. L. R. Co. v. Sullivan, 27 L.R.A. 840, 141 Ind. 83, 40 N. E. 138. e. For negligence in employing a surgeon at a hospital maintained by an employer for the benefit of employees, from whose wages a small sum is deducted monthly to create a fund for that purpose, the employer is liable, if by reason of the surgeon's unfitness an employee sustains damages, although he is treated, not at the hospital, but at the home of friends, where the surgeon is allowed to attend him. Richardson v. Carbon Hill Coal Co. 20 L.R.A. 338, 6 Wash. 52, 32 Pac. 1012. f. An employer who retains from the wages of his employees a certain amount with which to pay for the services of a surgeon if they are injured discharges his full legal obligation when he selects a competent surgeon to attend a particular injury, and cannot be held responsible for the surgeon's negligence. Wells v. Ferry-Baker Lumber Co. 29 L.R.A. (N.S.) 426, 57 Wash. 658, 107 Pac. 869. g. A railroad company which retains from the wages of each employee a small amount. with the aggregate of which it employs a j. A railroad maintaining a relief department for the benefit of injured employees, to which they are required to contribute of their earnings, is not liable, on the ground of the charitable nature of the enterprise. to an injured employee for injury due to the negligence of surgeons and nurses, if it has exercised reasonable care in selecting them. Barden v. Atlantic Coast Line R. Co. 49 L.R.A. (N.S.) 801, 152 N. C. 318. 67 S. E. 971. § 89. Notice of injury and cause thereof. Conflict of laws as to validity of contract for notice of injury to employer as condition to maintaining action for injury, see CONFLICT OF LAWS, § 6. Notice to city of injury to municipal em ployee on highway, see MUNICIPAL CORPORATIONS, § 310 b. Notice of claim under fellow servant act, see NOTICE, § 30 d. a. A notice of injury, under an employer's liability act should, with reasonable definiteness and completeness, in however, informal and inartistic manner. indicate the negligent or wrongful misconduct of the employer really claimed to have been the cause of the accident, and relied on as the basis of the complaint against him. Finnigan v. New York Contracting Co. 21 L.R.A. (N.S.) 233, 194 N. Y. 244, 87 N. E. 424. b. The notice of the time, place and cause of an injury required by an employ ers' liability act, need not be of such technial form and perfection, that it would satis y the tests to be applied to a pleading and demand a skill in preparation entirely be II. Liability of master for injuries to servant. a. Nature and extent; master's duty. yond the capacity of a layman. Finnigan pensation in case of such injuries, unless New York Contracting Co. 21 L.R.A. notice of the time, place, and cause of the (N.S.) 233, 194 N. Y. 244, 87 N. E. 424. accident shall be given to the employer withc. A provision in an employer's liability in a specified time. Finnigan v. New act that no notice of an injury shall be York Contracting Co. 21 L.R.A. (N.S.) 233, deemed insufficient by reason of any in- 194 N. Y. 244, 87 N. E. 424. accuracy in stating the cause of the injury will save a notice which, is merely inaccurate in giving some detail contemplated by the statute but does not excuse an utter omission to state some substantial fact. Finnigan v. New York Contracting Co. 21 L.R.A. (N.S.) 233, 194 N. Y. 244, 87 N. E. 424. h. Failure of the employer to receive the notice is immaterial where a statute providing for service of notice of injury for which the master is to be held liable states that it may be served by post, by letter addressed to the person on whom it is to be served. Hurley v. Olcott, 28 L.R.A. (N.S.) 238, 198 N. Y. 132, 91 N. E. 270. (Annotated) d. A notice to an employer of injury to an employee which was caused by allowing i. An injured workman is within the unexploded charges of dynamite to remain provision of the statute excusing notice to in rocks near to which the employee was be given the employer within thirty days at work, which does not mention such neg-in case of accident, mistake, or unforeseen ligence, but merely states failure to fur- cause, where, a week after the accident, he nish a safe working place and properly to was taken to a distant city for an operainspect, guard, and protect the working tion, after which for a time he was in explace, is not saved from insufficiency by a tremis, not allowed to talk, and had a very provision in the statute that no notice stormy convalescence which covered the balshall be deemed insufficient by reason of an ance of the thirty-day period, during which inaccuracy in stating the cause of injury. he could not personally have prepared the Finnigan v. New York Contracting Co. 21 required notice, although he might during L.R.A. (N.S.) 233, 194 N. Y. 244, 87 N. E. the last two weeks have sent word to the employer had it occurred to him to do so. Donahue v. Sherman's Sons Co. L.R.A. 1917A, 76, 39 R. I. 373, 98 Atl. 109. 424. e. A notice to an employer of injury to an employee does not comply with a statute requiring notice to be given of the cause of injury, which states that it was caused solely by reason of your negligence in that you, as his master, failed to furnish him with a suitable and safe place to work, and failed to safeguard said place in which the injured person was directed to work, and failed to furnish him with suitable tools, appliances, apparatus, ways, works, and machinery in connection with the work, and in that you failed properly to inspect, guard, and protect the place where he was at work, and in that you failed to furnish him with competent foremen and coemployees, and in that you failed to formulate, promulgate, and enforce proper rules and regulations for his safety." Finnigan v. New York Contracting Co. 21 L.R.A. (N.S.) 233, 194 N. Y. 244, 87 N. E. (Annotated) f. Notice to an employer of liability for injury to an employee, because of failure to furnish a suitable and safe place to work, and properly to inspect, guard, and protect the place where the employee was at work, does not fairly include the act of the master in allowing an unexploded charge of dynamite, used to remove rock, to remain in the rock near where the injured person was placed at work. Finnigan New York Contracting Co. 21 L.R.A. (N.S.) 233, 194 N. Y. 244, 87 N. E. 424. g. The fact that the foreman of a master was present immediately after the happening of an accident which caused injury to an employee, and therefore must have known the cause of the trouble, does not dispense with the requirement of the statute that no action shall be maintained for com 424. j. A provision in a contract of employment requiring the employee in case of injury to give notice of the injury within thirty days stating the time, place, manner, cause and extent of the injury, and his claim therefor is in the nature of a forfeiture and must be strictly construed. Smith v. Chicago, R. I. & P. R. Co. 28 L.R.A. (N.S.) 1255, 82 Kan. 136, 107 Pac. 635. k. The taking, by a railroad claim agent, of a written statement from an employee injured by the derailment of his engine, regarding the time, place, manner, and cause of the derailment, and the nature and extent of the injuries, within three weeks after the happening thereof, constitutes a waiver by the company of a clause in the injured person's contract of employment, providing that notice of a claim for an injury must be given within thirty days of the happening thereof, notwithstanding the statement did not state the amount of the claim for the injury, as required by the contract. Smith v. Chicago, R. I. & P. R. Co. 28 L.R.A. (N.S.) 1255, 82 Kan. 136, 107 Pac. 635. 1. A contract between master and servant requiring the latter to give the former notice of injuries within a specified time after they occur is not applicable to injuries within the operation of the Federal employers' liability act. Chicago, R. I. & P. R. Co. v. Pearce, L.R.A.1915F, 551, 118 Ark. 6, 175 S. W. 1160. (Annotated) m. The requirements of notice in Mass. employers' liability act, § 3, only apply, so far as § 1 is concerned, to the cases lying outside the common-law rule but embraced II. Liability of master for injuries to servant. a. Nature and extent; master's duty. by § 1, unless the plaintiff, although having | Extent of recovery under act, see DAMAGES, a common-law remedy, insists on relying § 440 r. upon the statute alone. Ryalls v. Mechanics Apportionment of recovery under, see DAMMills, 5 L.R.A. 667, 150 Mass. 190, 22 N. E. 766. AGES, § 453 b. Who may maintain action for wrongful death under, see DEATH, II. b. 2. Liability under Federal employers' Who is dependent beneficiary within meanliability act. § 90. Generally. Pullman porter as employee of railroad within provision invalidating contracts against liability to employees, see ante, § 4 m. As affected by contract requiring servant to give notice of injury within specified time, see ante, § 89 1. Assumption of risk as defense, see post, § 229 n. Effect of, as abrogating defense of assumption of risk, see post, § 241 c-e. Effect of contributory negligence under Federal employers' liability act, see post, § 299 a. Applicability to negligent act of fellow servant not in course of his employ ment, see post, § 354 g. Liability under statute for assault by serv ant on fellow servant, see post, § 439 z. Survival of action under Federal employers' liability act, see ABATEMENT AND RE VIVAL. Joining counts at common law and under Federal employers' liability act, see ACTION OR SUIT, § 105 b. Question of construction of act as conferring appellate jurisdiction, see APPEAL AND ERROR, § 51 c. Questions reviewable on appeal from allow. ance of damages under, see APPEAL AND ERROR, § 478 k. Reversal of judgment because of award of excessive amount to one claimant, see APPEAL AND ERROR, § 962 c, d. Exclusiveness of, see COMMERCE, § 33. Right to look to law of state to determine whether the act complained of amounted to negligence, see COMMERCE, § 38 a. Liability act as proper exercise of power to regulate commerce, see COMMERCE, S 88. What law governs as to measure of damages in action under act, see CONFLICT OF LAWS, § 168 c. Impairment of contract obligation by, see CONSTITUTIONAL LAW, § 179. Due process as to, see CONSTITUTIONAL LAW, $$ 565-567. Jurisdiction of suit under, see COURTS, $$ 333, 334. State courts following Federal decisions, as to what constitutes negligence under act, see COURTS, § 371 a. Effect of insurance on extent of recovery under, see DAMAGES, § 42 b. Recovery of punitive damages under, see DAMAGES, § 65 a. Damages recoverable under Federal employers' liability act, see DAMAGES, §§ 239 f, 240 f, 241 h-1, 242 d, f, h. ing of, see DEATH, § 14 a. Right of father to recover for death of adult son under, see DEATH, § 21 d. Compromise with beneficiary as defense to action for death under, see DEATH, § a. Amendment of complaint to bring action within operation of, as affecting limitation of actions, see LIMITATION OF ACTIONS, § 230 i-1. Recovery under state law where action is brought under, see PLEADING, § 92 a. Necessity of setting out in pleadings pe cuniary loss suffered by plaintiffs, see PLEADING, § 252 a. Sufliciency of complaint in action under act, Removal of cause arising under act, see see PLEADING, § 381. CONSTITUTIONAL LAW, § 606 a; RE- Retroactive effect of, see STATUTES, § 304. Duty of jury to apportion negligence of employer and employee, see TRIAL, § 181 d. Directing verdict in action under, see TRIAL, § 285 d. See also post, §§ 201 g, 295 c. a. The ordinary rules governing the relation of master and servant necessarily apply, and a railroad company is liable only where it has been negligent in the performance of some duty imposed upon it as employer, in an action brought for the death of an employee under the Federal employer's liability act (Act of Congress of April 22, 1908, 35 Stat. at L. 65, chap. 149, Comp. Stat. 1916, §§ 8657-8665), providing a remedy only in cases where the employee is killed or injured from a cause incidental to or arising out of railroad employment. Roebuck v. Atchison, T. & S. F. R. Co. L.R.A.1917E, 741, 99 Kan. 544, 162 Pac. 1153. b. The original common-law rules are to |