Statutes which impose burdens not known to the common law should be construed strictly in favor of those upon whom the burdens are imposed. 71 Ark. 556.

2. The full crew law, if applied to this line in Benton County, is void, because it is a burden upon interstate commerce. Art. 1, sec. 8, Const. U. S.; 210 U. S. 281; 95 U. S. 465; 201 U. S. 321; 202 U. S. 543.

3. If applied to appellant's lines in Benton, Sebastian and Sevier counties, the act is unreasonable and denies to appellant the equal protection of the laws, and deprives it of its property contrary to the Fourteenth Amendment. 118 U. S. 356; 165 U. S. 150; 174 U. S. 96; 183 U. S. 79; 184 U. S. 540; 232 U. S. 626; 230 U. S. 139; 229 U. S. 397; 230 U. S. 340; 42 L. R. A. (N. S.) 106.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The plain meaning and intent of the act was and is that all railroads authorized to do business in this State, whose roads are fifty miles or more in length and a part of which runs into or through this State, shall be subject to the provisions of the act. Acts 1907, p. 295, § 2; 86 Ark. 412; 219 U. S. 453; 165 U. S. 628.

2. It is not a burden on interstate commerce. 55 Law Ed., 290-296.

KIRBY, J., (after stating the facts). It is first contended for appellant that the act is not applicable to the operation of its road in Benton County, which is less than fifty miles in length within the State, therein. Section 1 of the act provides that no railroad company, etc., operating any line of railroad in the State, engaged in the transportation of freight, shall equip its freight trains, with a crew consisting of fewer men than an engineer, fireman, conductor and three brakemen, "regardless of any modern equipment of automatic coupler and air brakes, except as hereinafter provided." Section 2 provides the act shall not apply to any railroad company or officer of court, operating any line of railroad, whose line or lines are less than fifty miles in length, nor to any railroad in the State, regardless of length, where

the freight train operated shall consist of less than twenty-five cars, and "it being the purpose of this act to require all railroads in this State whose line or lines are over fifty miles in length engaged in hauling a freight train, consisting of twenty-five cars or more, to equip the same with a crew, consisting of not less than. an engineer, a fireman, a conductor and three brakemen, etc.," and permitting the increase of the number of the

crew.

Section 3 provides that the penalties of the act shall not apply during strikes of men in the service of the lines involved.

(1) The evident purpose of the act as therein declared, is to require all railroads over fifty miles in length, engaged in the operation of trains and the hauling of freight, to equip the freight trains of the designated length with the full crew including three brakemen and this relates to all railroads operating in the State, whose line or lines of road are more than fifty miles in length, whether they are fifty miles in length within the State or not.

If it had been the intention to require only such roads as operated a line fifty miles in length within the State words clearly manifesting that intention would have been used and not the expressions that were employed, which clearly manifest the intention to make this requirement of all railroads operating in the State, whose entire operative line is fifty miles or more in length. The law fixing the rate that may be charged for the carriage of passengers makes a like classification of railroads operating in the State of the length designated therein and it has not been questioned that the purpose and effect of such law was to fix the rate that might be charged for the carriage of passengers upon a road operated in the State, if the entire length of road was more than that designated in the statute, without regard to whether it was all in the State or not. It does not operate as an attempt to extend the authority of the State beyond its confines nor to give the law extra-territorial effect (Leonard v. State, 95 Ark. 381; State v. Lancashire Ins. Co., 66 Ark

466; Anderson v. State, 82 Ark. 405), but only as a classification of such lines as are required to comply with its provisions in order to protect the employees operating the trains and the public. This classification has been held reasonable and proper, both by this court and the Supreme Court of the United States. Chicago, R. I. & P. Ry. Co. v. State, 86 Ark. 412, s. c. 219 U. S 453.

In affirming the judgment of this court, declaring this act not a burden upon interstate commerce, nor in conflict with the commerce clause of the United States Constitution, the court said:

"It is too much to say that the State was under an obligation to establish such regulations as were necessary or reasonable for the safety of all engaged in business or domiciled within its limits. Beyond doubt, passengers on interstate carriers while within Arkansas are as fully entitled to the benefits of valid local laws enacted for the public safety as are citizens of the State. Local statutes directed to such an end have their source in the power of the State, never surrendered, of caring for the public safety of all within its jurisdiction; the statute here involved is not in any proper sense a regulation of interstate commerce, nor does it deny the equal protection of the law. Upon its face it must be taken as not directed against interstate commerce, but as having been enacted in aid, not in obstruction, of such commerce, and for the protection of those engaged in such commerce." Chicago, R. I. & P. Ry. Co. v. Arkansas, supra.

*

(2) Thus has the contention of the appellant railroad company that said act is in conflict with the Fourteenth Amendment and the commerce clause of the Constitution of the United States been determined against it, both by our court and the Supreme Court of the United States.

Neither do we think there is any merit in appellant's contention that the conclusion herein announced is in conflict with South Covington & Cincinnati Railway Co. v. City of Covington et al., 235 U. S. 537, which is an authority in its favor. There the court in

discussing the class of cases wherein the State may regulate the matter legislated upon until Congress has acted by virtue of the supreme authority given it by the commerce clause of the Constitution said: "The subject was given much consideration in the Minnesota Rate Cases, 230 U. S. 352, and the previous cases, dealing with this subject are therein collected and reviewed in the light of these cases. and upon principle, the conclusion is reached that it is competent for the State to provide for local improvements to facilitate, or to support reasonable measures as to the health, safety and welfare of the people, notwithstanding such regulations might incidentally and indirectly involve interstate commerce."

There being no error in the record, the judgment is affirmed.

1.

2.

KANSAS CITY & MEMPHIS RAILWAY COMPANY V. HUFF.

Opinion delivered January 25, 1915.

RAILROADS-CONTRIBUTORY NEGLIGENCE-INJURY TO SERVANT OF RAILROAD COMPANY.-Under Kirby's Digest, § § 6652 to 6655, inclusive, where an employee on freight train service, on a railroad over thirty miles in length, works for more than sixteen hours and returns to work without eight hours rest, and is injured and sues to recover damages therefor, the defense of contributory negligence can not be set up.

RAILROADS CONTRIBUTORY NEGLIGENCE-INJURY TO SERVANT OF RAILWAY COMPANY-MIXED TRAIN.-Kirby's Digest, § § 6652-6655, limiting the defense of contributory negligence in certain cases where an employee is injured by the operation of freight trains, applies to an injury received by an employee while in the operation of a mixed train which carried both freight and passengers.

3. RAILROADS-INJURY ΤΟ

4.

GENCE DEGREE OF NEGLIGENCE. In a suit instituted by an employee against a railway company for damages due to negligence, brought under section 1, Act 88, page 55, Public Acts 1911, the defense of contributory negligence is available unless the carrier is more negligent than the servant, or where the carrier is guilty of the violation of any law enacted for the safety of the employee, which violation contributed to the injury sued for.

RAILROADS-INJURY TO SERVANT-CAUSE CONTRIBUTORY NEGLIGENCE. -In an action for damages for an injury to the servant of a rail

5.

way company, for the defense of contributory negligence to be unavailing under Act 88, Public Acts 1911, by reason of a violation of the provisions of Kirby's Digest, § § 6652 to 6655, relating to the hours of employment, it must be shown that the working of the servant overtime in some manner or degree contributed to the injury.

RAILROADS-INJURY TO SERVANT-WORKING SERVANT OVERTIME-DEFENSES. A railroad, in an action for damages brought by an injured employee, will not be deprived of pleading plaintiff's contributory negligence, as provided in Act 88, Public Acts 1911, simply because the servant had been worked overtime.

6. RAILROADS-INJURY

7.

ΤΟ

an

SERVANT-DEFENSES-NEGLIGENCE.-In action by an employee of a railroad company for damages due to an injury caused by negligence, under Act 88, Public Acts 1911, his action could not be defeated by the plea of assumption of risk, nor the defense of contributory negligence, unless his negligence in performing his duties was greater than that of the other employee of defendant which caused his injury, and, further, if the fact that plaintiff had been worked overtime contributed to his injury, then the degree of his negligence was immaterial, and his right to recover could not be defeated by any proof of contributory negligence on his part.

RAILROADS-INJURY ΤΟ SERVANT OBSTRUCTIONS.-Under Act 88, Public Acts 1911, in an action for damages for an injury to a servant thereof, due to negligence because of "any insufficiency of clearance of obstructions," a continuing duty rests on the railway company to remedy such obstructions, and the phrase held to mean anything that would impede the safe operation of a train or imperil the safety of any one engaged in its operation, and no knowledge of any failure to perform this duty imposes upon the servant any assumption of risk.

Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed.

Dick Rice, for appellant.

1. This action did not arise out of any of the provisions of Act No. 88 of 1911, and the doctrine of comparative negligence was, therefore, erroneously injected into the case. The injury complained of does not come within section 1 of the act, because it did not result in whole or in part from the negligence of any of appellant's officers, agents or employees; and it does not come within section 2, because the injury was not due to any defect in any car or cars, track or roadbed. The doctrine of