give reasonable time to make said repairs. If he is injured under these circumstances, the master is liable. If the danger is imminent, so much so that no prudent employee would undertake to perform the work, the servant must quit the employment without delay. 11. Contributory Negligence.-If the employer does not expressly promise to repair after notified, and the employee remains in the service, the servant is then not relieved from the charge of contributory negligence in case of injury.34 A railroad employee was sent on a wrecking train to assist in clearing the track. He entered the locomotive and took a seat there, instead of going into the car provided for the gang of workmen, which he knew was against the rules of the company. A collision ocHeld, that he was guilty of such negligence in thus exposing himself to extra danger, and his representative was barred the right to recovery, notwithstanding the negligence of the employee in charge of the train. "A person who voluntarily and unnecessarily places himself in a well known place of danger to life and body, but for which position he would not have been injured, and he is injured or killed in consequence of such exposure, even through gross negligence of the defendant, if the act of the latter is not wanton or willful, is guilty of such contributory negligence as to preclude any recovery by him or his personal representative."'35 curred and he was killed. If an employee in the faithful discharge of his duty should be suddenly called upon by his master to do an act, and be told to "hurry up," it cannot be expected that he will remember particular dangers that he previously knew of. It would not be reasonable to expect the same amount of care that would be required of him if he had reasonable time for deliberation, and in his haste cannot be taken as concurrent negligence.36 Wharton & Redfield on Neg., § 96; Cooley on Torts, 559; Wharton Neg. 220; Patterson v. Railroad Co., supra; Hough v. Railroad Co., 100 U. S. 213; Conrad v. Iron Works, 62 Mo. 35; Clark v. Holmes, 7 H. & N. 348; Parody v. Railroad Co., 15 Fed. Rep. 205; Greene v. Railroad Co., 17 N. W. Rep. (Minn.) 378; Manufacturing Co. v. Morrissey, 40 Ohio St. 148. 34 Railroad Co. v. Drew, 59 Texas, 10; Simmons v. Railroad Co., 11 Brad. (Ill.) 147; Railroad Co. v. Lynch, 90 Ill. 334. 35 Abend v. Railroad Co., 111 Ill. 202. 36 Lee v. Woolsey, 16 Weekly Notes of Cases, (Phila.) 337; Whart. Neg., § 219. 12. Burden of Proof. If the master is charged with negligence in keeping unfaithful employees, the burden is on the injured servant to prove it.3 37 13. Who Are Fellow-Servants is a Question for the Jury.-Who are fellow-servants within the rule is a question of fact and not of law, and is for the jury to decide. It is error for the court to instruct the jury as to who are fellow-servants under a given state of facts. Whether employees are operating in a line of business and consociating as fellow-servants is a question of fact for the jury, and not one of law. 38 14. Negligence. The question of negligence is a fact for the decision of the jury,under the instructions of the court. Whether the defendant has been negligent to a degree to subject him to liability, or whether the plaintiff has been so negligent as to exempt the defendant from liability, must be passed on by the jury, instructed by the court as to the principles pertaining thereto. Though in Connecticut it is held a question of fact for the jury exclusively, without the instruction of the court as to the law applicable to the case.40 There is no relation of privity between the railroad corporation and its employees. The obligations of the railroad company to provide its servants reasonably safe machinery and instrumentalities, and to secure co-servants who are careful and competent, are the first principles of the common law. Bloomington, Ill. D. H. PINGREY. 37 Railroad Co. v. Burrough, 15 Conn. 133; Railroad Co. v. Troesch, 68 Ill. 545; Railroad Co. v. Geary, supra; Cook v. Trans. Co., 1 Denio, 91. 38 Railroad Co. v. Moranda, supra; Railroad Co. v. Morgenstern, 106 Ill. 216. 39 Bradley v. Railroad Co., 2 Cush. 543; Huyett v. Railroad Co., 23 Pa. St. 373. 40 Beers v. Railroad Co., 19 Conn. 566; Park v. O'Brien, 23 Conn. 347. 5 leading English case of Jones v. Boyce,1 where it appeared that the plaintiff had been on the top of a coach when, in consequence of the horses becoming unruly and unmanageable, there was a real danger that the coach might be upset, and the plaintiff, therefore, jumped off and was thereby injured. And so, in the leading American case of Stokes v. Salstonall,2 where it appeared that a passenger had jumped from a stage-coach, fearing that it would overturn, it was laid down that "it is sufficient, if he was placed, by the misconduct of the defendant, in such a situation as obliged him to adopt one alternative, leap or remain in peril." We find Chief Baron Kelly laying down a like doctrine in Siner v. G. W. Ry. Co. ; and so, in the Admiralty case of The Bywell Castle,1 where in a collision the libelled vessel changed her course when in her very agony,' as James, L. J., put it, it was held that, if a ship, by wrong manœuvres, has placed another ship in a posttion of extreme peril, that other ship will not be held to blame, if in that moment of extreme peril and difficulty she happens to do something wrong, and is not manœuvred with perfect presence of mind. accurate judgment and promptitude, "although," observed Cotton, L. J., those before whom the case comes to be adjudicated, with knowledge of all the facts, are able to see that the course adopted was in fact not the best." As it is put in the American case of Wesley City Coal Company v. Healer," where a party has given another reasonable cause for alarm, he cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility resulting from the alarm. So, in Colllns v. Davidson, it was said by McCrary, J. (Amer.): "In the case of sudden and unexpected peril, endangering human life, and causing unnecessary excitement, the law makes allowances for the circumstance that there is but little time for deliberation, and holds a party accountable only for such care as an ordinarily prudent man would have exercised under similar circumstances." But, 6 11 Stark. 402. 2 13 Pet. 181. 3 L. R. 3 Ex. 150. 44 Pro. D. 219. 5 84 Ill. 126. 619 Fed. Rep. 83. in a recent case,' Bramwell, L. J., objected with much force to such a phrase as "What would a prudent man do?" saying that a prudent man might jump out of a fast train, if he saw imminent danger to his wife or child; and the phrase should be taken to mean, "What would a prudent man do under ordinary circumstances?" The general rule, indeed, seems to be best formulated by Field, J., thus: "If a person, by a negligent breach of duty, expose a person towards whom the duty is contracted to obvious peril, the act of the latter, in endeavoring to escape peril, although it may be immediate cause of the injury, is not the less to be regarded as the wrongful act of the wrong doer ; and this doctrine has we think, been rightly extended in more recent time to 'a grave inconvenience' when the danger to which the passenger is exposed. is not in itself obvious.''10 In such a case, said Lord Ellenborough in Jones v. Boyce," "the proprietor will be responsible, though the coach was not actually overturned." But an able writer in the October number of the American Law Register is perfectly justified in stating that the rule is subject to this limitation,-that it is necessary that the situation of peril in which the plaintiff is placed, in order to make his act while there an excusable error of judgment, must be the result of the negligence of the defendant;12 and where, therefore, the plaintiff has, by his own negligence, placed himself in a position of known peril, or where the act of the plaintiff causing his injury resulted from a rash apprehension of danger which did not exist, then, although in the excitement and confusion he makes a mistake in his attempt to escape from impending peril, and is exposed to greater danger, the consequences of such mistake cannot be visited upon the defendant, for no degree of presence of mind nor want of it has anything to do with the case, as it was negligence to be there. On this subject no better illustration could be presented than the Irish case of Kearney v. The Great Southern and Western Railway 7 Lax v. Mayor of Darlington, 5 Ex. D. 28. 8 See Lloyd v. Hannibal, etc., Ry., 53 Mo. 509. 9 Jones v. Boyce, supra. 10 Robson v. The North Eastern Ry. Co., L. R. 10 Q. B. 271. 11 Jones v. Boyce, supra. 12 See the Elizabeth Jones, 112 U. S. 514, 526. It Co., decided in June last by the Queen's plaintiff's dangerous act of jumping out of Bench Division. the carriage. And after citing Jones v. Boyce13 and Robson v. North Rastern Ry.,14 he said: "In the present case there was not, in my opinion, evidence of peril or grave inconvenience within these authorities which ought to have gone to the jury. The coupling-rod of the engine broke ; one end pierced the boiler; steam escaped thence, and smoke from the furnace; the train yielded at once to the action of the vacuum brake-was slowly and shortly came to a standstill. does not appear how the engine-driver and stoker came by the serious injuries they sustained; but no passenger in the train was injured, or (except the plaintiff and the girl O'Connor) even alarmed. These two seem to have been terrified by the cry-a statement of some men being passengers in the same compartment—that the train was on fire. The defendants are not responsible for this cry or statement; it was mnfounded, in fact; but the plaintiff, in panic, jumped through the carriage door, which the girl O'Connor had opened, and she was injured. The injuries, however, were, in my opinion, the result of unfortunate rashness, and not of the defendants' negligence. On this ground, therefore, I think the case was rightly withdrawn from the jury."-The Irish Law Times. The plaintiff there was a passenger on the defendants' railway from Lismore. At six o'clock, when the train was approaching Castletownroche station, the plaintiff felt a shock, and some pebbles struck the windows of the carriage, and the carriage, as the plaintiff thought, became filled with smoke. A man in the same compartment as the plaintiff looked out of the window, and cried out that the train was on fire. The train was moving very slowly at the time; the plaintiff was greatly frightened, and jumped out of the carriage, and was in consequence injured. It appeared that the coupling rod of the engine had broken, which caused water and steam to issue from the engine, which, it would seem, the plaintiff mistook for smoke. In fact, the carriage was not on fire, nor was the plaintiff, in fact, in any danger, when the accident happened. A brake was put on, and the train had nearly stopped when the plaintiff jumped out. O'Brien J., who tried the case, was of opinion that there was no evidence that the injury to the plaintiff was caused by any negligence or default of the defendants, and directed a verdict and judgment to be entered for the defendants. The plaintiff, thereupon, moved to set aside this verdict and judgment, and the question for the Court was, whether the judge was right in the direction he gave. May, C. J., and O'Brien, J., held that the injury to the plaintiff was not the result of any negligence by the defendants, and that the direction of the trial judge was right; though, of course, as regards the negligence of the defendants, the case would have assumed a different aspect had the railway carriage been in fact overturned in consequence of the defect in the machinery, or the plaintiff injured by the direct consequence of that defect, instead of by reason of rashly jumping out, without inquiry, immediately on hearing the cry of "fire." Johnson, J., agreed in the decision, but without deciding whether there was evidence of negligence on the defendants' part for the jury. But, on the question whether, assuming negligence on the defendants' part, it was by reason thereof the plaintiff sustained the injuries, he thought there was not evidence for the jury of a peril justifying the to inquire and determine whether that statute, so construed, is in conflict with that clause of the constitution of the United States which confides to congress the regulation of commerce among the States. 3. Such a statute, having been enacted by the State of Illinois, and so construed by its supreme court, it is held that transportation of goods from points within the State of Illinois to the city of New York, is commerce among the States, and as such is subject only to the regulation of congress, under the clause of the constitution of the United States, which confers on that body exclusive authority to regulate commerce among the States. 4. The transportation of goods under the contract in question from points within a State to points beyond its limits, being commerce among the States in the strictest sense, an enactment controlling it is not one of that class of commercial regulations which a State may establish and keep in operation until congress shall have exercised its power on that subject. Writ of error to the Supreme Court of the State of Illinois. MILLER, J., delivered the opinion of the court: This is a writ of error to the Supreme Court of Illinois. It was argued here at the last term of this court. The case was tried in the court of original jurisdiction on an agreed statement of facts. This agreement is short, and is here inserted in full: "For the purposes of the trial of said cause, and to save the making of proof therein, it is hereby agreed on the part of the defendant that the allegations in the first count of the declaration are true, except that part of said count which avers that the same proportionate discrimination was made in the transportation of said property-oil-cake and eorn-in the State of Illinois that was made between Peoria and the city of New York, and Gilman and New York city, which averment is not admitted, because defendant claims that it is an inference, from the fact that the rates charged in each case of said transportation of oil-cake and corn were through rates, but it is admitted that said averment is a proper one." The first count in the declaration, which is referred to in this memorandum of agreement, charged that the Wabash, St. Louis & Pacific Railway Company had, in violation of a statute of the State of Illinois, been guilty of an unjust discrimination in its rates or charges of toll and compensation for the transportation of freight. The specific allegation is that the railroad company charged Elder & McKinney for transporting 26,000 pounds of goods and chattels from Peoria, in the State of Illinois, to New York city, the sum of $39, being at the rate of fifteen cents per hundred pounds for said car-load; and that on the same day they agreed to carry and transport for Isaac Bailey and F. O. Swannell another carload of goods and chattels from Gilman, in the State of Illinois, to said city of New York, for which they charged the sum of $65, being at the rate of twenty-five cents per hundred pounds. And it is alleged that the car-load transported for Elder & McKinney was carried eighty-six miles further in the State of Illinois than the other carload of the same weight. This freight, being of the same class in both instances, and carried over the same road, except as to the difference in the distance, it is obvious that a discrimination against Bailey & Swannell was made in the charges against them, as compared with those against Eider & McKinney; and this is true, whether we regard the charge for the whole distance from the terminal points in Illinois to New York city, or the proportionate charge for the haul within the State of Illinois. The language of the statute which is supposed to be violated by this transaction is to be found in chapter 114 of the Revised Statutes of Illinois, § 112. It is there enacted, that if any railroad corporation shall charge, collect, or receive, for the transportation of any passenger or freight of any description upon its railroad, for any distance within the State, the same or a greater amount of toll or compensation than is at the same time charged, collected, or received for the transportation in the same direction of any passenger or like quantity of freight of the same class over a greater distance of the same road, all such discriminating rates, charges, coilections, or receipts, whether made directly or by means of rebate, drawback, or other shift or evasion, shall be deemed and taken against any such railroad corporation as prima facie evidence of unjust discrimination prohibited by the provisions of this act. The statute further provides a penalty of not over $5,000 for that offense, and also that the party aggrieved shall have a right to recover three times the amount of damages sustained, with costs and attorney's fees. To this declaration the railroad company demurred. The demurrer was sustained by the lower court in Illinois, and judgment rendered for the defendant. This, however, was reversed by the supreme court of that State, and on the case being remanded the demurrer was overruled, and the defendant pleaded, among other things, that the rates of toll charged in the declaration were charged and collected for services rendered under an agreement and undertaking to transport freight from Gilman, in the State of Illinois, to New York city, in the State of New York, and that in such undertaking and agreement the portion of the services rendered, or to be rendered, within the State of Illinois, was not apportioned separate from such entire service; that the action is founded solely upon the supposed authority of an act of the legislature of the State of Illinois, approved April 7, 1871; and that said act does not control or affect or relate to undertakings to transport freight from the State of Illinois to the State of New York, which falls within the operation, and is wholly controlled by the terms of the third clause of section 8 of article 1 of the constitution of the United States, which the defendant sets up and relies upon as a complete defense and protection in said action. This question of whether the statute of Illinois, as applied to the case in hand, is in violation of the constitution of the United States, as set forth in the plea, was also raised on the trial by a request of the defendant, the railroad company, that the court should hold certain propositions of law on the same subject, which propositions are as follows: "The court holds as law that, as the tolls or rates of compensation charged and collected by the defendant in the instance in question were for transportation service rendered in transporting freight from a point in the State of Illinois to a point in the State of New York, under an entire contract or undertaking to transport such freight the whole distance between such points, that the act of the general assembly of the State of Illinois, approved May 2, 1873, entitled 'An act to prevent extortion and unjust discrimination in the rates charged for the transportation of passengers and freight on railroads in this State, and to punish the same, and prescribe a mode of procedure and rules of evidence in relation thereto, and to repeal an act entitled 'An act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in the State for the transportation of freight on said roads,' approved April 7, 1871," does not apply to or control such tolls and charges, nor can the defendant be held liable in this aɔtion for the penalties prescribed by said act. The court further holds as law that said act in relation to extortion and unjust discrimination cannot apply to transportation service rendered partly without the State, and consisting of the transportation of freight from within the State of Illinois to the State of New York, and that said act cannot operate beyond the limits of the State of Illinois. The court further holds as a matter of law that the transportation in question falls within the proper description of 'commerce among the States,' and as such can only be regulated by the congress of the United States, under the terms of the third clause of section 8 of article 1 of the constitution of the United States." All of these propositions were denied by the court and judgment rendered against the defendant, which judgment was affirmed by the supreme court on appeal. The matter thus presented as to the controlling influence of the constitution of the United States over this legislation of the State of Illinois raises the question which confers jurisdiction on this court. Although the precise point presented by this case may not have been heretofore decided by this court, the general subject of the power of the State legislatures to regulate taxes, fares, and tolls for passengers and transportation of freight over railroads within their limits has been very much considered recently (State Freight Tax Case, 15 Wall. 232; Munn v. Illinois, 94 U. S. 133; Chicago, etc. R. Co. y. Iowa, Id. 155; Peik v. Chicago, etc. R. Co., Id. 164; Stone v. Farmers' Loan & Trust Co., 116 U. S. 307; s. c., 6 Sup. Ct. Rep. 334, 388, 1191; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 204; s. c., 5 Sup. Ct. Rep. 826; Pickard v. Pullman Southern Car Co., 117 U. S. 34; s. c., 6 Sup. Ct. Rep. 635); and the question how far such regulations, made by the States and under State authority, are valid or void, as they may affect the transportation of goods through more than one State, in one voyage, is not entirely new here. The Supreme Court of Illinois, in the case now before us, conceding that each of these contracts was in itself a unit, and that the pay received by the Illinois railroad company was the compensation for the entire transportation from the point of departure in the State of Illinois to the city of New York, holds that, while the statute of Illinois is inoperative upon that part of the contract which has reference to the transportation outside of the State, it is binding and effectual as to so much of the transportation as was within the limits of the State of Illinois (People v. Wabash, etc. R. Co., 104 Ill. 476), and, undertaking for itself to apportion the rates charged over the whole route, decides that the contract and the receipt of the money, for so much of it as was performed within the State of Illinois, violate the statute of the State on that subject. If the Illinois statute could be construed to apply exclusively to contracts for a carriage which begins and ends within the State, disconnected from a continuous transportation through or into other States, there does not seem to be any difficulty in holding it to be valid. For instance, a contract might be made to carry goods for a certain price from Cairo to Chicago, or from Chicago to Alton. The charges for these might be within the competency of the Illinois legislature to regulate. The reason for this is that both the charge and the actual transportation in such cases are exclusively confined to the limits of the territory of the State, and is not commerce among the States, or inter-State commerce, but is exclusively commerce within the State. So far, therefore, as this class of transportation, as an element of commerce, is affected by the statute under consideration, it is not subject to the constitutional provision concerning commerce among the States. It has often been held in this court, and there can be no doubt about it, that there is a commerce wholly within the State which is not subject to the constitutional provision; and the distinction between commerce among the States and the other class of commerce between the citizens of a single State, and conducted within its limits exclusively, is one which has been fully recognized in this court, although it may not be always easy, where the lines of these classes approach each other, to distinguish between the one and the other. The Daniel Ball, 10 Wall. 557; Hall v. De Cuir, 95 U. S. 485; Telegraph Co. v. Texas, 105 U. S. 460. It might admit of question whether the statute of Illinois now under consideration was designed by its framers to affect any other class of trans |