CONNOR, District Judge
(after stating the facts as above). Passing, for the present, other questions discussed on the argument, we pause to inquire whether, as alleged by plaintiff, the Constitution of Virginia, section 162 (Code 1904, p. cclix), prohibits or invalidates the contract relied upon by defendant, as the basis of the release by the plaintiff, of the cause of action set out in the declaration. For this purpose the averments of the declaration are taken to be admitted by the special plea, and those of the plea to be admitted by the demurrer. So much of section 162 of the Constitution of Virginia as relates to the question presented by the pleadings is in these words:
“Tbe doctrine of fellow servants, so far as it affects tbe liability of the master for injuries to bis servant resulting from tbe acts or omissions of any other servant, or servants of tbe common master, to tbe extent hereinafter stated, is abolished as to every railroad company engaged in tbe physical construction, repair or maintenance of its roadway, track or any of tbe structures connected therewith, or in any work in, or upon a car or engine standing upon a track, or, in. tbe physical operation of a train, car, engine or switch, or in any service requiring 'bis presence upon a train, car or engine; and every such employé shall have the same right to recover for every injury suffered by him from the acts or omissions of any other [29]*29employé or employSs of the common master that a servant would have (at the time when this Constitution goes into effect) if such acts or omissions were those of the master himself in the performance of a non assignable duty.”
The section contains further provisions, in regard to liability for the negligence of a fellow servant not material to any phase of this case, and further provides:
“The physical construction, repair or maintenance of the roadway, track or any of the structures connected therewith, and the physical construction, repair, maintenance, cleaning or operation of trains, cars or engines shall be regarded as different departments of labor, within the meaning of this section; knowledge by any such railroad employe injured, of the defective or unsafe character or condition of any machinery, ways, appliances or structures, shall be no defense to an action for injury caused thereby.”
After providing for an action by the legal or personal representative of any employ.é whose death shall be caused by any injury sustained by the acts or omissions of a fellow servant or defective ways, it is provided:
“Every contract or agreement, express or implied, made by an employé to waive the benefits of this section shall be null and void.” Section 162, Const. Va.
It was evidently the purpose of the framers of this section of the Constitution of Virginia to abolish the common-law doctrine of the nonliability of the common master for injuries resulting from the negligence, either by acts, or omissions, of a fellow servant, subject to certain exceptions and limitations. Beginning with the enactment of the employer’s liability act by the British Parliament, we find, in many American states and continental countries of Europe, the enactment of similar statutes, the purpose and effect of which are either to abolish the doctrine altogether or to restrict and limit its application — they are usually confined to employés of railroads. Their constitutionality has been upheld by the courts with practical uniformity. That they do not conflict with the federal Constitution, or the amendments thereto, is settled. Missouri Pacific Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Chicago, Kansas & Western Railroad Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675.
Assuming that the averments of the declaration bring the plaintiff’s case within the provisions of the Constitution, and that “he was injured by an act or omission of a fellow servant,” as defined and limited by the language of the section, does the contract, set forth in the special plea, waive any of the “benefits” conferred by said section? It is manifest that, by becoming a member of the Relief Department, plaintiff did not 'waive, or deprive himself of the right to maintain, an action against defendant for an injury sustained by him while in its service as defined by the Constitution “by an act or omission of a feilow servant.” There is nothing in the rules or regulations of the Relief Department which could be averred or pleaded in bar of an action brought by him for such injury; nor did he, by becoming a member thereof, make any “contract, express or implied,” by which he waived any of the “benefits” conferred upon, or secured to, him by the Constitution. Giving the language of the section the most liberal [30]*30construction possible, nothing more is secured to the employé, injured by the negligence of a fellow servant, than the right to recover from the common master damages for such injury, in the same manner and to the same extent, as if the same acts or omissions were those of the master himself in the performance of a nonassignable duty. We are unable to perceive how, by any possible interpretation, the scheme known as the Relief Department, or becoming a member thereof, can be said to waive the right of action secured to the employé by the Constitution. As uniformly held by other courts, in which the same contention has been made, the employé does not waive, or agree to waive, any rights to which he is entitled by becoming a member of the_ Relief Department. He simply agrees that, after the injury is sustained, and his cause of action accrues, he will elect whether to sue for damages or accept the benefits secured by the Relief Department — that he will not do both. There is no suggestion that plaintiff made his election under such circumstances or conditions, either mental, moral, or physical, making it inequitable to enforce it; similar statutes have been enacted, whereby agreements made in advance of an injury, caused by the negligence of a fellow servant, or defective appliances, ways, or means are declared to be invalid. The courts have held that becoming a member of the Relief Department was not within the letter or spirit of these statutes. Pittsburgh, C., C. & St. L. R. R. v. Cox, 55 Ohio St. 497, 45 N. E. 641, 35 L. R. A. 511; Railroad v. Moore, 152 Ind. 345, 53 N. E. 290, 44 L. R. A. 643; Hamilton v. Railroad (C. C.) 118 Fed. 94. At the moment plaintiff sustained the injury for which this action is brought, the right of action, or “benefit,” secured to him by the Constitution (section 162) of Virginia was complete; his membership in the Relief Department did not affect it in the slightest degree.
Defendant insists that, the ground of the demurrer being specifically limited to the provisions of the section 162 of the Constitution, it is not open to plaintiff, upon this writ of error, to attack the special plea for any other ground. The assignment of error is confined to the action of the court in overruling the demurrer and rendering judgment against plaintiff. This being an action at law, we are governed, in questions of practice, as near as may be, by rules prevailing in the courts of the state of Virginia.
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CONNOR, District Judge
(after stating the facts as above). Passing, for the present, other questions discussed on the argument, we pause to inquire whether, as alleged by plaintiff, the Constitution of Virginia, section 162 (Code 1904, p. cclix), prohibits or invalidates the contract relied upon by defendant, as the basis of the release by the plaintiff, of the cause of action set out in the declaration. For this purpose the averments of the declaration are taken to be admitted by the special plea, and those of the plea to be admitted by the demurrer. So much of section 162 of the Constitution of Virginia as relates to the question presented by the pleadings is in these words:
“Tbe doctrine of fellow servants, so far as it affects tbe liability of the master for injuries to bis servant resulting from tbe acts or omissions of any other servant, or servants of tbe common master, to tbe extent hereinafter stated, is abolished as to every railroad company engaged in tbe physical construction, repair or maintenance of its roadway, track or any of tbe structures connected therewith, or in any work in, or upon a car or engine standing upon a track, or, in. tbe physical operation of a train, car, engine or switch, or in any service requiring 'bis presence upon a train, car or engine; and every such employé shall have the same right to recover for every injury suffered by him from the acts or omissions of any other [29]*29employé or employSs of the common master that a servant would have (at the time when this Constitution goes into effect) if such acts or omissions were those of the master himself in the performance of a non assignable duty.”
The section contains further provisions, in regard to liability for the negligence of a fellow servant not material to any phase of this case, and further provides:
“The physical construction, repair or maintenance of the roadway, track or any of the structures connected therewith, and the physical construction, repair, maintenance, cleaning or operation of trains, cars or engines shall be regarded as different departments of labor, within the meaning of this section; knowledge by any such railroad employe injured, of the defective or unsafe character or condition of any machinery, ways, appliances or structures, shall be no defense to an action for injury caused thereby.”
After providing for an action by the legal or personal representative of any employ.é whose death shall be caused by any injury sustained by the acts or omissions of a fellow servant or defective ways, it is provided:
“Every contract or agreement, express or implied, made by an employé to waive the benefits of this section shall be null and void.” Section 162, Const. Va.
It was evidently the purpose of the framers of this section of the Constitution of Virginia to abolish the common-law doctrine of the nonliability of the common master for injuries resulting from the negligence, either by acts, or omissions, of a fellow servant, subject to certain exceptions and limitations. Beginning with the enactment of the employer’s liability act by the British Parliament, we find, in many American states and continental countries of Europe, the enactment of similar statutes, the purpose and effect of which are either to abolish the doctrine altogether or to restrict and limit its application — they are usually confined to employés of railroads. Their constitutionality has been upheld by the courts with practical uniformity. That they do not conflict with the federal Constitution, or the amendments thereto, is settled. Missouri Pacific Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Chicago, Kansas & Western Railroad Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675.
Assuming that the averments of the declaration bring the plaintiff’s case within the provisions of the Constitution, and that “he was injured by an act or omission of a fellow servant,” as defined and limited by the language of the section, does the contract, set forth in the special plea, waive any of the “benefits” conferred by said section? It is manifest that, by becoming a member of the Relief Department, plaintiff did not 'waive, or deprive himself of the right to maintain, an action against defendant for an injury sustained by him while in its service as defined by the Constitution “by an act or omission of a feilow servant.” There is nothing in the rules or regulations of the Relief Department which could be averred or pleaded in bar of an action brought by him for such injury; nor did he, by becoming a member thereof, make any “contract, express or implied,” by which he waived any of the “benefits” conferred upon, or secured to, him by the Constitution. Giving the language of the section the most liberal [30]*30construction possible, nothing more is secured to the employé, injured by the negligence of a fellow servant, than the right to recover from the common master damages for such injury, in the same manner and to the same extent, as if the same acts or omissions were those of the master himself in the performance of a nonassignable duty. We are unable to perceive how, by any possible interpretation, the scheme known as the Relief Department, or becoming a member thereof, can be said to waive the right of action secured to the employé by the Constitution. As uniformly held by other courts, in which the same contention has been made, the employé does not waive, or agree to waive, any rights to which he is entitled by becoming a member of the_ Relief Department. He simply agrees that, after the injury is sustained, and his cause of action accrues, he will elect whether to sue for damages or accept the benefits secured by the Relief Department — that he will not do both. There is no suggestion that plaintiff made his election under such circumstances or conditions, either mental, moral, or physical, making it inequitable to enforce it; similar statutes have been enacted, whereby agreements made in advance of an injury, caused by the negligence of a fellow servant, or defective appliances, ways, or means are declared to be invalid. The courts have held that becoming a member of the Relief Department was not within the letter or spirit of these statutes. Pittsburgh, C., C. & St. L. R. R. v. Cox, 55 Ohio St. 497, 45 N. E. 641, 35 L. R. A. 511; Railroad v. Moore, 152 Ind. 345, 53 N. E. 290, 44 L. R. A. 643; Hamilton v. Railroad (C. C.) 118 Fed. 94. At the moment plaintiff sustained the injury for which this action is brought, the right of action, or “benefit,” secured to him by the Constitution (section 162) of Virginia was complete; his membership in the Relief Department did not affect it in the slightest degree.
Defendant insists that, the ground of the demurrer being specifically limited to the provisions of the section 162 of the Constitution, it is not open to plaintiff, upon this writ of error, to attack the special plea for any other ground. The assignment of error is confined to the action of the court in overruling the demurrer and rendering judgment against plaintiff. This being an action at law, we are governed, in questions of practice, as near as may be, by rules prevailing in the courts of the state of Virginia. Passing the question of practice, we will consider the other question, argued by counsel for plaintiff in a well-considered oral argument and printed brief, in which he insists that, independent of the prohibitory provisions of the Constitution, the contract entered into by plaintiff, when he became a member of 'the Relief Department, is against public policy and void. In passing upon this contention we are confined to averments in the special plea, which are admitted pro hac vice to be true. This excludes any suggestion that the plaintiff was not fully advised of the regulations of the Relief Department as it alleges “that a book containing the regulations of the said Relief Department was on or about May 30, 1907, delivered to the plaintiff,” or that he did not enter into it voluntarily, as it is alleged that “he made a voluntary application in writing in due and legal form to be admitted as a member of said Relief Department,” or that, after sustaining the injury, he was under coercion, or was misled, or [31]*31kept in ignorance of his rights in the premises, as it is alleged “that he did exercise his election and did accept and receive from said department benefits to which he was entitled under the regulations thereof.”
The sole question, therefore, is whether there is such inherent vice in the plan or scheme, established by defendant, set forth in the plea, as brings it under the condemnation of the principles of the common law, rendering all contracts made, and all acts done under and pursuant to it, null and void, or whether the relations existing between the plaintiff and the defendant were such as to render it contrary to sound public policy for them to enter into the contract, or to enforce rights, or set up defenses acquired under it. The question of the validity of the contract, or contracts, in all respects similar to the one before us, has been so fully discussed by the courts, both state and federal, and so uniformily upheld, that nothing new is open to be said. It has been expressly decided by this court. In A. C. L. R. Co. v. Dunning, 166 Fed. 850, 94 C. C. A. 128, in a well-considered and amply-sustained opinion by Judge Morris, in which Mr. Chief Justice Fuller concurred, the same contract relied upon by defendant herein was upheld. The learned judge says:
“By a great number of carefully considered adjudications of the courts, both state and federal, contracts of this character have been upheld and determined not to be against a sound public policy, but distinctly beneficial to the employé, as well as wise on the part of the employer.”
He cites a large number of cases sustaining his opinion. It is not necessary that we do more than refer to the volume of the Federal Reporter in which the case is reported. The basis upon which all of the decisions rest is that, by becoming a member of the Relief Department, the employé does not waive, or contract against, liability for damages for an injury sustained by the negligence of the employé. That, after sustaining the injury, he is free to maintain an action for damages without regard to his being a member of the department. That he is entitled to the benefits secured by membership without regard to negligence or legal liability of the emploj^er. That when he elects to take such benefits he releases, and not until then, the employer from other or further liability. With an evident and frequently expressed determination to strictly construe all contracts made by employés of public service corporations, or those in whose service the employment involves unusual hazard, waiving any rights, the courts have, with practical uniformity, and by the same process of reasoning, upheld this plan or scheme, adopted by railroad companies, and, so far as we are informed, concurred in by their employés.
This injury having occurred prior to the enactment of the federal employer’s liability act (April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), the provision of that statute in regard to these contracts is not presented.
The judgment must be affirmed.