OJnntpU IGaui ^rlynnl Sitbtary corn... Un.ve«.W Ubrary The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024687745 EMPLOYERS' LIABILITY PEESONAL IISTJUEIES THEIR EMPLOYEES. UNDEV THE DIRECTION OF, PREPARED AJJD WRITTEN FOR, THE MASSACHUSETTS BUREAU (S|F STATISTICS OF LABOR, FOR ITS FOURTEENTH ANNUAL REPORT, CHi^RLES G. F^LL Of the Sdffolk Bak. BOSTON: WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 18 Post Office SauABE. 1883. KS'/^^^^ INTRODUCTION. These pages were written for the Commonwealth of Massachusetts, in accordance with a resolution of the Legislature directing an investi- gation of the law relating to the liability of employers for personal injuries received by their employees while in the discharge of their duties, and a consideration of what changes, if any, are needed in the existing laws relative to such liability ; and they are published in this form with the consent of the department of the State Government for which they were prepared. An attempt has been made to state briefly the condition of the law, its origin and growth, and the reasons which support it; to show what is the law of other States and countries, and where it may be found ; to analyze the judicial reasons given in support of the doctrine of common employment, as it is called, and suggest some reasons in favor of a change of the law. C. G. F. Boston, March, 1883. EMPLOYEES' LIABILITY FOR PERSONAL INJURIES TO THEIR EMPLOYEES. The legislature at its last session directed an investigation of the subject of the liability of employers to workmen for injuries received while in the discharge of their duty, and a consideration of what changes, if any, are needed in the existing laws relative to such liability. A careful investiga- tion of the law and facts which bear upon tlie subject has been made, and it has been fully considered in its various phases, with especial care, for the first time, so far as known, in this country. It is a sul>ject which, in all its varii-d relationships, is by no means easy of comprehension. It is fruitful of embarrassments, and hedged about with difficul- ties, but at the same time of no inconsiderable consequence to the welfare of the community. During the nine years ending with 1881 there were, aicording to the "Railroad Gazette,' 2,372 persons killed, and !),387 injured, in the United States, on the railroads alone; and of these, 1,2(!G were killed and 1,478 injured on the railroads of this Com- monwealth. A largf majority of both the killed and injured were employees. Of those killed in this Commonwealth, 358 were of this class, while of those injured there were G.53. During the year 1881 alone, 72 employees were killed and 128 injiu'ed in this Commonvvealih. When one single brancli of employment causes such an annual sacrifice as this, it seems to be time to consider whether something cannot be done to prevent it. The subject can be easily stated and plainly illustrated. It can be embodied in the simple question : Ought employees to have the same right to recover damages for personal 4 STATISTICS OF LABOR. injuries that all others have ? Should tlie rule of law which forbids employees from recovering damages from their employers for injuries caused by the negligence of fellow" employees and without their own contributory negligence be changed ? Should they be allowed, for similar injuries from the s;nnlB cause, the same right to damages from their employers that the rest of the world has ? If, by way of illustration, an accident should occur on a railroad train, should the brake- nwii have the same right to sue for damages that a passenger has? If the brakeman's arm should be broken through the carelessness of a switchman or a gate-tender, should he possess the same right ihat a passenger would have ft»r a similar injury? His injury would be the same, his suffer- ings would be as great. He would, no doubt, be quite as much in need of relief. Nor bus he been more negligent, for both were unconscious victims. To lake another illustration. Suppose two persons had been injured in a mill or manufactory through the bursting of the boiler. One was a spinner or a shoe-cutter, the other was, perhaps, a boy who had come in to sell apples and candies. Ought the spinner or the shoe-cutter to have the same right to damages as the apple-boy? They, to be sure, were in the employ of the corporation, and were injured by the carelessness of a fellow-workman in the same employ. But the engineer who neglected his duties, and caused the CO ' accident, was as unknown to them as he was to the apple- boy. Not one of them, perhaps, had ever seen the engineer. They knew nothing of his habits or his knowledge of his business ; much less could they tell whether he was careful or careless, skilled or unskilled, temperate or a drunkard. Ought they all to have alike the same right to recover damages from the owners of the mill or manufactory ; or ought the apple-boy to have a right of action while the spinner and the shoe-cutter have none ? Ought the boy to be paid — as well as money can pay — for his broken leg, while the spinner and the shoe-cutter can receive nothing by way of compensation? Ought they to be told, when they apply at the company's office, that nothing can be done for them, and the law affords them no redress, because thev and EMPLOYERS' LIABILITY. 5 the engineer were fellow-laborers for the same employer? These are the questions which the resolution directs the ■Bureau to consider, collect facts concerning, and upon which to report. Contributory Negligence. A majority of the injuries to employees as well as to others occur through their own ciirelessness, and where it is not entirely due to their own carelessness it is often due to it in part. The law of some of the States allows damages to be recovered where, of the two, the person injured is more careful than the person causing the injury. But the law of this Commonwealth is so strict as to demand that the person injured shall be in the exercise of due and rcasonal)le care, and says that when he is in the least careless, and is not in the exercise of such care, he shall not recover damages. He is then said to have consented or contributed in some way to the accident by his own lack of ordinary care. And ordinary care is defined to be such care as men of ordinary sense, prudence and capacity would take under like circumstances. The law expects a man to have his wits alwaj's about him, and declares him guilty of contril)utory negligence when- ever, by the exercise of ordinary care, he might have pre- vented the injury. And it makes men who are sitting in the calm atmosphere of a court room judges of whether at the time of the accident he did what a ruasonably prudent man oUsrht to have done under the exigencies of the moment. It will not allow a man to take the risk of an injury and compel some one else to pay for the consequences. He must have been prudent and careful while the one who caused the injury was reckless and careless. And this rule of law is applied liy the courts with great strictness. The application puts out of consideration, in discussing this subject, all cases where the acts of the employees have in any way contributed to the injury. Respondeat Superior. There is a well-known principle of law which makes every man liable for his own wrong-doing or breaches of contract whenever they have caused actual or legal damage. It is « STATISTICS OF LABOR. founded in natiiiul justice, and is as well recognized and as indisinitahlcas Kepler's Law of Areas, or the axiom of ge- ometry that a straight line is the shortc^t distance between two points. And not only is every man li:il)lo for his own torts and breaches of contract, but he is liable for those of his duly authorized agent, so long as the agent acts within the scope of his authority. He is liable, to quote the words of a celebrated authority, " fur the torts, negligences and other malfeasances, or misfeasances, and omissions of duly of his servant, in the course of his employment, although the princi[)al did not authorize it, or justify or participate in, or, indeed, know of such misconduct, or even if he forbade the acts or disapproved them." It is because he has acted through and by the hand of another. The agent has been another' self, who has done the bidding of his master and been guided by his mind. The complications of life a:e so man}' and so yaiied, the operations of business are so com- plex and manifold, that most of the acts of many men are dune by others for them. Corporations especially are only impersonalities, and all their acts aic done by agents. But these acts are none the less the acts of their principals, none the less directed by them ; and the principals are none the less responsible for them. Every hand in a cotton factory that spins a thread or lends a loom under the direction of the superintendent, is the superintendent's hand. Ever}' hand that on a railroad drives a spike or moves a lever or a switch, according to his general orders, is the superintendent's hand. Every arm that in a quarry or a coal mine holds a drill or strikes a blow, is the arm of the superintendent, so long sis it obeys his will. And the superintendent is but the mouth- piece of the corporation, or his principals. Were it other- wise, any one, by employing some one else to do his bidding, could escape the consequences of his own acts. When they were to his advantiige he would rea|) the profits ; when they were to his disadvantage he could disclaim them and escape the losses. There are many acts which can be done better by the hand of another than by the hand of their author. A vast majority of the acts done and labor performed in the mechanic arts, and in general business, are better done by agents. How EMPLOYERS' LIABILITY. 7- many merchants are there who could sail their ships as well as the captains whom they hire? oi make the goods they sill as well as the workmen they employ? How many builders could erect a staging or frame a house? How many founders could make a mould or finish the casting? How many pub- lishers of a newspaper could set up the type or write the editorials? How many a jeweller could cut diamonds as well as the workman he emploj's ? And they are responsible financially, morally, legally, for the acts of their agents, whether good or bad, so long as they are done within the general scope of their authority. An express company wants, perhaps, a bundle delivered In a hurry , and, in driving through the streets, one of its employees knocks down and injures a foot-passenger who is crossing the street. A banker wants to be driven home at the close of the day's business, and his coachman carelessly runs into another gentleman's carriage. The owner of a quarry wants some stone blasted out, and one of his quarrymen, while tamping the gunpowder into the drill-hole, causes an explosion which injures a passer-by. These agents are generally able to do well what they are told to do — better able than their prin- cipals. They were acting within the scope of their agency, and simply doing what they were told to do. They were not wilfully doing wrong, and, perhaps, never before had been careless. They, and through them their principals, were bound to exercise due care always. It was a duty they owed the general public, whom they were bound to protect from harm. They have for once broken this obligation, vio- lated the contract of safety which the law implies in every act of danger. Someone has been injured by iheir careless- ness, and they, as well as their employers, are legally liable to make such compensation in money as a jury may award. The reasons which are the basis of this principle of re- spondeat superior, making a master liable for the negligence of his servant, may be unjust and wrong, but it is too late to controvert them now. They are as firmly grounded as the foundations of justice itself. This principle is found in the law of England as early as the reign of Charles 11. The first recorded reference to it is in the second volume of " Le- vintz's Reports," in the case of Michael v. Allestree. Black- 8 STATISTICS OF LABOR. stone enunciates the principle on page 431 of the first volume of his Commentaries ; but our ancestors might have found it among the laws of ancient Rome. Ita scripta est. So it is written, and so it must remain, unless the legislature would overturn the corner-stone of the law of agency. "It has long been the e.-tabfished law of this country," said Lord. Chelmsford, in a famous case which will be hereafter referred to, "that a master is liable to third persons for any injury or damage done through the negligence or unskilfuiness of a servant acting in his master's employ. The reason of this is that every act which is done by a servant, in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it was the master's act, accord- ing to the maxim, Qui facit per alium facit per se." And this general principle is known in the civil and common law by the title respondeat superior — the master must respond. Liability to Employees. One of the outgrowths of this principle is the liability of employers for acts of their agents which have caused personal injury to their employees. The iSrst recorded case of this kind that has been found occurred during the magistracy of Lord Holt, who was appointed Chief Justice of the King's Bench at the close of the English Revolution, by William and Mary ; who held this high office for twenty-tme years, during three reigns, until his death, and twice refused to accept the great seal of the Lord Chancellor. The case ap- pears in the first of Raymond, and is thus stated: " The servants of a carman ran over a boy in the streets, and maimed him by negligence, and an action was brought against the master ; and the plaintiff recovered. The servants of A, with his cart, ran against the cart of B, in which there was a pipe of wine, viz., sack, and overturned it, whereby the sack was spoiled and ran into the street : an action was brought against the master, and held good by Lord Holt, Chief Justice at Guildhall." If Lord Holt had sought for any other reason than his natural sense of justice as a basis for his judgment, he might have found a precedent in the rule of the Roman law which made the head of the house- hold, the pater-familias, responsible for the negligence of EMPLOYERS' LIABILITY. 9 both his servant and chikl, and compelled him to make com- pensation for their negligence, or give up the wrong-doer, whether servant or child, to the person injured. Almost every principle of law has its roots in precedents which have been growing perhaps for centurii'S. The roots of some principles have been growing since the birth of society. The law of agency, which makes one person responsible for the authorized acts of another, is an outgrowth of the ancient relations of master and servant. In Greece, in Kome, in Judea even, the servant was the slave of his master, over whom the latter had, under some circumstances, the jus vitoe et necis; the power of life and death, as well as the power of sale. And the strictness with which the master controlled his servants' acts was the reason why he was held to so strict a legal responsibility. First Exceptiox to the Principle. It may perhaps be safely said that there is no recorded exception to this principle before 1837. The case of Priestly V. Fowler* is the first variation from the pi-inciple which has been found. This was decided without any allusion to Lord Holt's decision. It was decided by Lord Abinger, who is bet- ter known as Sir James Scarlett, the ablest and most success- ful jury lawyer and verdict-getter in the annals of the English Bar, although in eloquence he was inferior to Lord Erskine. But, great as he was at the bar, like Erskine and some other celebrated advocates, he was not distinguished as a judge. The case is as follows : A butcher sent one of his men on a wagon which had been loaded by another employee, but loaded too heavily. The wagon broke down, and the man's thigh was broken. His Lordship decided that the butcher was not liable for the injury. The ground of the decision is not plain. It docs not .ippear whether the wagon broke down because it was not in proper condition for the journey, or because it had been carelessly overloaded ; and the opinion does not say whether the butcher is not liable because the law does not imply a contract of warranty as to the safe condition of the wagon, or because the law docs not imply a contract to indemnify against the negligence of his servant. • 3 M. & W. 1. 10 STATISTICS OF LABOR. There are several instances loosely cited by way of analogy, and with the skill which advocates possess in suggesting analogies, several of which are quite as applicable to other relations as to the relation of master and servant. It was at this period, which was one of development of patents and of mechanic arts, and of large textile factories, that railroads began to be projected. The principal railroads of England and America were in their infancy, and needed to be fostered and encouraged. Important legal questions were arising as to the liability of corporations, and old principles of law were for the first time applied to the relations of cor-^ porations towards their creditors and employees. It was almost the beginning of the centralization of large wealth and capital in great manufacturing and mechanical operations. No man was wise enough to foresee the development which was to take place, or the vast importance which might ac- crue to some judicial decision made to meet the exigencies of a single comparatively unimportant case. The first case, involving the lights of employees against their emploj'ers which arose in this Commonwealth, was Farwell v. The Bos- ton & Worcester Railroad,* which was decided in 1842. It is this : An engine was thrown from the track and the en- gineer injured through the carelessness of a fellow employee in leaving the switch open. The engineer sued for damages. Chailcs G. Loring, a name still remembered at the Suffolk Bar, brought the suit, and contended that there was an im- plied stipulation in the contract of hiring between the rail- road company and the engineer, " for the safety of the ser- vant's employment, so far as the master can regulate the matter," — a contract that the railroad company would indemnify the engineer for the negligence and want of ordi^ nary care of its employees. The only valuable authority which was cited at the argument against this contention was Priestly v. Fowler, which the plaintiff admitted would have been a controlling authority had the switchman and engineer been engaged in a similar occupation. Although they were at work for the same employer, their occupations were dif- ferent, dissimilar, and in every way distinct. One tended a switch on the line of the road, the other drove a locomotive • 4 Met. 49. EMPLOYERS' LIABILITY. 11 over the road from Boston to Worcester. Not only were their duties unlike : they knew nothing of each other, nothing of each other's carcfuhiess or personal hahits. So far as any knowledge of each other or so far as heing engaged in a com- mon employment was concerned, th<>y might as well have been employed in different cities, and by diflVrent men. The Court, however, in an elaborate opinion written by Judge Shaw, followed the English precedent. The grounds of the opinion — the I'atio decidendi — will be alluded to hereafter. It is perhaps sufficient to say here, that the Chief Justice found it unnecessary, because of the plaintitFs admission, to consider this as a case where the principle known as Respondeat Superior should apply. But he confined the chief ground of his opinion to this point, — that there was no " implied contract of indemnity arising out of the relation of master and servant. It would be an implied promise arising IVoni the duty of the master, to be responsible to each person cm^ ployed by him in the conduct of every branch of business where two or more persons are employed, to pay all damage occasioned by the negligence of every person employed in the same service. If such duty were established by law, like that of a common carrier, to stand to all losses of goods not caused by the act of God or of a public enemy, or that of an innkeeper to be resjjonsible in like manner for the baggage of his guests, it would be a rule of frequent and familiar occurrence, and its existence and application, with all its qualitications and restrictions, would be settled by judicial precedent. But we are of opinion that no such rule has been established, and the authorities, so far as they go, are opposed to the principle." He then cites his authorities, one of which is Priestly v. Fowler,* and the other Murray v. The South Carolina Railroad Company. f This case is the leading authority in favor of the new rule, and contains the ablest discussion of the subject to be found in any English or American report. $ And because the injured and the in- • 3 M. &. W. 1. +1 McMulIan, 385. tThis case was not published, so says an Enplish text-book, till after BartonshiU Coal Company v. McOuire was deeided, which was in 1858. But it seems this is an error; for, by referring to a volume in the library of Mr. Sidney Bartlett, it appears that tlie 4th of Mctcalf's Reports was published as early as November 9, 1843. And it is remarkable that so able an opinion, which outlined the whole theory that per- vaded the English decisions, should not have been seen , or earlier referred to as a leading authority. 12 STATISTICS OF LABOK. jiiiing workman, in all this class of ca^es, work in common for the same employer, this rule, for lack of a more descrip- tive title, was soon called the doctrine of common employ- ment. The similar case of Huyea v. The Western Railroad Cor- poration* arose some years afterwards. Judge B. E. Curtis was counsel for the corporation, and Judge Fletcher, who had been counsel for the railroad in the earlier case, wrote an opinion sustaining the previous authority. The same question again arose in England in 1850, in the suit of Hutchinson V. The York, Newcastle and Berwick Raihyay Company. f Although Priestly v. Fowler was an earlier case, this is the leading English case, properly speaking, upon this subject. Here the question was likewise decided upon the ground th!it there was no implied contract of indemnity between employer and employee, but an implied contract to run the ordinary risks of the service. Baron Alderson says, in his judgment : " The difficidty is as to the principle applicable to the case of several servants employed by the same mister, and injury resulting to oue of them from the negligence of an- other. In such a case, however, we are of opinion that the master is not in general responsible when he has selected persons of competent care a;id skill." The reason f )r this rule is, he says, " They have both engaged in a common service, the duties of which impose a certain risk on each of them ; and, in case of negligence on the part of tlie others, the party injured knows that the negligence is that of his fellow-servant, and not of his master;" which seems equivalent to saying that, after being injured, he knows who injured him. " Ho knew when ho engiiged in the service that he was exposed to the risk of injury, not only from his own want of skill and care, but also from the want of it on the part of his fellow- servant ; and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk." This is an implied contract, " a risk," he says, «' which Hutchinson must be taken to have agreed to run when he entered into the defendant's service." And in a single sentence he then defines both the principle and the terms of the implied contract. " The principle is that a • 3 CuBh. 270. t 5 Exch. EMPLOYERS' LIABILITY. 13 servant, when he engages to serve a master, iindertalies, as between himself and his master, to run all the ordiniuy risks of the service ; and this includes the risk of negligence ou the part of a follovy-servant whenever he is acting in dis- charge of his duty as servant of him who is common master of both." Hero is the girit of this whole controversy. On the very same day Chief Baron Pollock delivered a judgment in the case of "Wigniore v. Jay,* in which he affirmed the same principle without carrying it further, citing Priestly v. Fowler, which is the only authority cited in eitht'r of these judgments. The next year Seymour v. Maddox,! in the court of Queen's Bench, likewise affirmed the principle, and even went so far as to decide that the manager of a theatre was not liable for damages sustained by ii singer fr.im falling through a hole in tiie stage. Skipp V. The Eastern Counties Railway! followed soon after, in which the ''risks incident to the service" were defined and extended by the decision that an employer was not liable for an accident caused by keeping an insufficient number of men for the work, because there was no implied Cijntract with his employees that he would employ men enough to do the work. Baron Parke says : " The defendants were not bound to keep twenty servants ; they are to be judges of the number. They are, indeed, bound to see that their servants are per- sons of proper care and skill." And Baron Alderson says : § " The jury are not to bo judges of the sufficiency of the number of servants a man keeps. The plaintiff stayed in this situation three months without having an under-guard to assist him, and without making any objection." " He goes into the service," says Baron Parke, " and willingly in- curs the danger." In 1854 Couch f.' Steel || was decided jn the Queen's Bench, which is important because it carries this doctrine to the sea, and applies it to the relation of ship- owner and seaman. This case decides that a ship-owner who " so negligently fitted out and equipped his vessel that by reason thereof she was unseaworthy, and the plaintiff was thereby obliged to undergo unreasonable labor, and was • 5 Ex. 354 ; 19 L. J. Ex. 300. t 16 Q. B. 320'; 20 L. J. Q. B. 327. ^ J 9 Ex. 223 ; 23 L. J. Ex. 23. § Vide 3 Cusli. 27 ante. II 3 El. & Bl. 402; 18 Jiir. 575; 23 L. J. Q.B. 121. 14 STATISTICS OF LABOR. injured in his hcaltli," is not lisiblc in damages. Lord Cliief Justice Camphell adopts the above principle, and says, " It seems tome that tliore is no contract or duty disclosed in this count f(»r a breach of which the defendant is liable," cit- ing Priestly *. Fowler in support of his judgment. And Coleridge, J., added, '« The plaintiff must rely on a general principle that in all such cases there is an implied contract that the vessel is seaworthy." The law of this case has been changed by a statute which compels a ship-owner to suitably fit out his ship. Seamen are wards of the State, and were taken especially under its protection, because they were notoriously careless of their lives and property ; like chil- dren, easily imposed upon ; and were, especially while at sea, very much at the mercy of ship-owners and their cap- tains, and almost never in a position to make a contract upon equal terms with their employers. It was during the next year, 1854, thatBrydou v. Stewart* was decided in the House of Lords, which laid down the rule that a master who employs work iicn in occupations attended with danger is oblirought upon similar fa«fs, — injuries caused to miners in hoisting them from a coal-pit, by the negligence of a fellow-workman in not stopping the engineer , until he had driven the cage in which tbey were hoisted against the scaffolding with sufficient force to throw them out. Both overruled the unanimous judgments of the Scotch judges in favor of the plaintiff*, rendered on the ground that an em- ployer is liable to his employee for the negligence of his authorized agent, though a fellow employee. The first af- firms the doctrine already laid down, — that an employer is not liable to his employee for an injury caused by the negligence of a fellow employee. It also recognizes the rule already specified, which was first laid down in Brydon v. Stewart, -f that an employer who employs workmen in dangerous occu- pations is bound to exercise due care in having his tackle and machinery, his plant, in a safe and proper condition, in order that his workmen may not be exposed to unnecessary risks. And, thirdly, it seems to recognize the rule which had been already laid down in another case, Tarrant v. Webb, I as well as by the dicta of Baron Alderson in Skipp V. The Eastern Counties Railway Company, § that it is the duty of the employer to exercise due care in the selection of his employees, and see that they are persons of proper care and skill, and generally competent for the work in which they are engaged. And this principle has been incorporated into the law of this Commonwealth by a line of cases, of which the leading one is FarWell v. Boston & Worcester Railroad. I) In Gilmau «. Eastern Railroad Corporation,** the Court, in an opinion by Gray, J., says, " But it is quite as well settled, both in England and America, that a master * 3 McQueen, 266 } 4 Jur. N. S. 767 ; 3 Mac. 300. + 13 Macq. 30. J .18 C. B. 797 ; 25 L. J. N. S. C. P. 263. ' ^ 9 Ex. 223 ; 23 L. J. Ex. 23. II 4 Met. 49. *• 10 Allen, 233, 238 ; and 13 Allen, 443. 16 STATISTICS OF LABOR. is bound to use ordinary care in providing his structures and engines, and in selecting his servants, and is liable to any of th6ir fellow servants for his negligence in this regard." The judgment in the first of these cases was delivered by Lord Crauworth, and was sust:iined by the judgments of Lord Brougham and Lord Chelmsford, in the second case. A similar case in this Commonwealth was Wood v. New Bed- ford Coal Co.,* which was decidijd in 1876. The ratio decidendi of Lord Cninworth, who was then Lord Chancellor, is the same as that first announced by Chief Justice Shaw in Farwell v The Boston & Worcester Railroad, f that there was no implied contract of indemnity, but a contract to run the risks of the employment. He says, " When several workmen engage to serve a master in a com- mon work, they know, or ought to know, the risks to which they are exposing themselves, including the risks of careless- ness against which their employer can not secure them ; and they must bo supposed to conti-act with reference to such risks." Implied Contracts. What is an implied contract? All contracts are either express or implied. They are either expressed in words, or implied by law. Whenever the parties have failed to ex- press in words all the terms of a contract, which they both intended to express, the law supplies the deficiency. " Ex- press contracts," says Blackstone, " are where the terms of the agreement are openly uttered and avowed at the time of the making — as to deliver an ox, or ten loads of timber, or to pay a stated jirice for certain goods. Implied are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform. As, if I em- ploy a person to do any business for me or perform any work, the law implies that I undertook or contracted to pay him as much as his labor deserves. If I take up wares from a trades- man without any agreement of price, the law concludes that I contracted to pay their real value." It is one of the fictions of the law, by which a promise is implied where none has been made ; and it is a fiction which gained admission after no little opposition and delay. The judges were slow to • 121 Mass. 252. f 3 Met. 49. EMPLOYERS' LIABILITY. 17 give it their approbation, because it compelled them to assist ill becoming makers of law, instead of interpreters only. It was said i)y Chief Justice Holt, iu the eleventh year of the reign of William III., "that the notion of promises in law is a metaphysical notion, for the law makes no promise but where there is one by the party ; " and as late as the third year of the reign of Queen Anne, " there is no such thing as a promise in law." Although the doctrine by which they became apart of the law is thoroughly recognized, contracts are implied only when justice, duty, or legal obligation seem to require it. But cases where this doctrine has been applied have grown up one by one, grown up as exceptions, and contrary to the spirit of the common law ; and an exception has been made only when the court thought an occasion had arisen where justice required a change. This exception, when once made, has generally stood as a precedent for other judges to follow. A page or more might be filled with instances where such a precedent has been made, which was afterwards engrafted on to the body of the law. If, for instance, a principal is obliged to pay damages in consequence of the negligence of his agent, the law implies a promise by the agent to reimburse him. Or, as has been recently been held in England,* if an agent makes a contract in the name of his principal, he impliedly contracts that he has the authority of his alleged principal ; and, if he has not, that he will take the contract upon himself. General Laws and Exceptions. Such exceptions have been carefully watched and guarded against by the wisest and most prudent judges. They are like exceptions to the general principle that there must be a privity of contract between the plaintiflF and defendant, iu order to render the defendant liable to an action by the defendant in the contract. To this general principle there had gradually grown up in this Commonwealth various exceptions, to which the court, in a celebrated decision by Judge Metcalf,! found it necessary to put an end, by col- * Wright V. Follen, 7 El. & Bl. 301, and 8 El. & BI. 647. t Mullen V. "Whipple, 1 Gray, 317. 18 STATISTICS OF L.VBOR. lectiiig and reducing the cases to throe classes, and declining to allow the general principle to be further encroached upon. A general rule may sometimes work injustice. By the very terms of the definition, it is made for the generality of cases. If it does not work injustice in the majority of cases, it is about all the law can pretend to do. Laws are made for the benefit of men in the mass, and cannot be made for individual cases. A great many complaints that the law sometimes works injustice would be found unjust, if the person aggrieved would consider that, in the very na- ture of things, general laws can only cover the majority of cases. It is better that the law be stable and certain than vacillating and unreliable. If exceptions must be made, it is better for them to be as few as possible, unless they also form a class of cases. Legislation for individual cases is burdensome, and wrong in theory. In the very nature of government, a few must suffer wrong that justice may prevail for the majority. In a community where every man is resolved to have exact justice for himself, every man becomes a law unto himself. Anarchy must follow, or soci- ety will return to barbarism. In a well-governed society, which is thought to be the happiest social condition, every man must sacrifice something of his preferences, something of his individual rights, for the sake of the general welfare. In such a community as many general laws will be made as general welfare requires, while exceptions will be as rare as possible. What is the Contract? Accepting for the present, for the sake of the argu- ment, the theory that the law implies that the employee makes a contract with his employer, the question at once arises, What is the contract? It is a contract, it is said in the decisions quoted, to run the risk of personal injury from the negligence of a fellow-employee. Now there is, it will be remembered, a fundamental principle of law, that there can be no contract without a meeting of minds, — no con- tract unless the parties mutually understand its terms, and mutually assent to them. When the contract is expressed, there is an actual assent ; when it is implied, the assent is implied by law. Neither can there be an assent unless the 15.MPL0YERS* LIABILITY. 19 parties know to what they are assenting. It is, therefore, necessary for each party to have in mind, at the time of making the contract, the terras to which he assents. AYhen the contract is implied, the law implies that each, at the time it was made, had its terms in his mind. Whether he had or not is a question of fact, and a question of fact based upon the ordinary experience of mankind. It is said that because workmen, when making contracts of employment, ordinarily have in mind the fact that they are to run this risk of injury from the negligence of fellow-workmen, the law should imply such a fact. This is a fact, it is said, of common experience, such a one as properly comes within the province of a jury. With all deference to the opinions of the learned judges who declare this to be a fact of common experience, may it not still be questioned whether workmen, when engaging work, ordinarily have this fact in their minds? The law, it is true, is at present settled. But should the subject come before the legislature, it ought again to be argued upon its original merits. The same arguments should again be analyzed. The same facts which were made by the judges the basis of their opinions should again be discussed. The whole subject should be reconsidered as if it were a new question, — a question which the legislature were called upon to consider for the first time. Otherwise they would not come to a view of the subject with eyes open to the admission of all light, but influenced, perhaps, by the opin- ions of others. Is there not room for grave doubt whether workmen, when making their contracts, actually consider their pro- spective danger of receiving personal injury? Is there not room to doubt whether their employers at such a time think of the question of liability, or ask themselves where the re- sponsibility for damages rests should an accident occur? whether the employee runs his own risk, or is guaranteed against injury? This is a question to be decided by the common experience of ordinary men, which is the test the wisdom of centuries has established fur the decision of ques- tions of fact. Questions of fact have been left to juries, be- cause it was thought that men familiar with business and 20 STATISTICS OF LABOR. daily life would decide more justly than judges. Occasional flurries of excitement occur, when confidence is shaken in juries, but the great weight of public and judicial reliance upon the justice of their verdicts remains unshaken. If the common experience of ordinary men declares that the danger of injury is seldom thought of at the time of making such con- tracts, then the fact, which the judges have assumed as the basis of their opinions, does not exist. If, moreover, common experience declares further that workmen are not expected to run their own risks, but to look to their employers for pro- tection, the fact is reversed, the theory falls to the ground together with the hypothesis upon which it rests, and the law should be reversed in favor of the workmen. This is the gist of the question, as presented in these opinions ; and there is on both sides abundant opportunity for argument. Were it not put upon the ground of an implied contract, but upon that of an actual contract unexpressed, a contract which could be proved in evidence by custom and usage, it would be another question based upon the same hypothesis, to be answered by a knowledge of the same fact. It would be in the end the same question, and would require the same answer. It would depend upon whether common experience declares that both workman and employer, at the time the contract to work is made, ordinarily expect the workman to take the risk, or the employer to protect him. When it is remembered that the employer is liable to every other third person for the negligence of his servant, is liable, for in- stance to a passenger for the negligence of an engineer in running his train, it would seem as though common experi- ence would imply a like contract of indemnity with another servant, a brakeman, for instance, who is likewise a third person. Why should not the law create a similar contract in two cases so similar? Judge-made Law and Public Policy. It is the province of the legislature to make law, and the province of the judiciary to interpret it. Where one class of men have had for centuries the right to declare what the law is, and have been respected for their character and held in honor for their authority, it would not be strange if e:\iployers' liability. 21 sometimes they had overstepped the boundaries of their province. Judges, like other men, are human ;• and the love of power, with the pleasure of using it, is one of the most natural as well as one of the strongest passions of the mind. For centuries they have administered justice, have arbi- trated between their fellow-men, and been the tribunal of last appeal. From their judgment, when a court of last re- sort, there has been no appeal except by open rebellion. It is no wonder that they have made law sometimes, usurping the exclusive privilege of a co-ordinate branch of the govern- ment. It is no wonder that, with the growth of time, new law has grown up, and new precedents have been engrafted upon old principles misapplied ; but it is never pretended that judges have the right to make law ; never pretended that they have the right to invent a principle ; nor can they render a decision contrary to a statute. It is seldom claimed that they can change the law as it has been laid down before their time by a superior or a co-ordinate court. But they may apply an admitted principle to a new state of facts. They may decide upon a different set of circumstances. Nevv combinations of fact are constantly arising, and in ap- plying to these facts a recognized principle, judges are some- times obliged to establish new precedents. In doing tliis they are making new law. This is a part of their duty, and as necessary as justice itself. Decisions are sometimes made because public policy de- mands it. Public policy is a general term, almost undefin- ablo. It includes the policy of the State, and is always in harmony with good government and good morals. It is al- ways in harmony with the genius and spirit of our laws and institutions, as they in turn are mutually in harmony with it. This is a principle used for various purposes. It is used some- times to prevent the passage of a law, sometimes to prevent the setting up of a will. When, for instance, Daniel Webster wanted to break Stephen Girard's will, because it refused clergymen admission within the college walls, and encouraged atheism, he said it was a will made contrary to public policy. When, again, he wished to prevent the great steamboat mo- nopoly from having, under an act of the legislature, the ex- clusive right to navigate the Hudson River, he argued that 22 STATISTICS OF LABOR. such legislation was against public policy, aud unconstitu- tional. When the anti-slavery leaders in the Senate wanted to prevent the spread of slavery to the Territories, they declared its extension to bo against the public policy of the country. When Rufus Choate, in the Constitutional Convention of 1852, opposed the election of the judiciary for a term of years, he argued that the public policy of the State demanded that judges should have a life tenure, con- ditional upon good behavior. These latter instances are the most common uses to which the doctrine is applied. It is the province of the legislature to decide what is or is not against public policy ; and the legislature is usually jealous of any encroachment from this direction upon its ancient rights and privileges. The right to imply a contract is exercised by virtue of this doctrine of public policy. Certain contracts are implied by the courts, because they are in harmony with public policy. Certain other contracts are not implied. In the former instance the judges make a contract for the parties where they have failed to make one for themselves. They can by this means even defeat the real intention of the contracting parties. This power is exercised by virtue of the assumed rights to declare what is public policy, and to make a contract in accordance with this declaration. These certainly arc extraordinary powers, which should be exercised with great circumspec- tion, and jealously and scrupulously watched by the legis- lative branch of the government. Common Employment. The term common employment was early used to designate the employment of two or more workmen by one master. As a defence to actions for personal damages it was first ap- plied to two persons, the person injured, and the person doing the injury, employed in a similar occupation. It was not, however, an appropriate term, because it did not sug- gest to the mind the principle which was the basis of this defence, but, instead, an example of the principle. It did not suggest that there was ho implied contract of indem- nity, but merely that both workmen were engaged to work for the same master. EMPLOYERS' LIABILITY. 23 As soon as the rule became recognized law in both Eng- land and America, the courts were called upon to define common employment, and say what classes of cases the term included. Having established the rule, they were asked to apply it, and say whether it should receive a wide or a nar- row application. As case after case arose, they were asked to decide whether it came under the rule ; whether in general the term should include only those employees who worked side by side in a similar occupation, as, for instance, masons building a wall together, carpenters erecting a staging, weavers tending adjacent looms ; or whether it should have a wider scope, and embrace all employees who were hired by the same person, as, for illustration, all the hands in a fac- tory, or all the employees of a railroad corporation. These were the limits of the application of the rule. Between the two extremes there were various degrees where the rule might be held to include occupations more or less dissimilar. The chief question which embarrassed the courts was whether, as in the case where the rule was first announced, it should include only persons engaged in similar occupations, or should extend to any and every occupation, however dissimilar. Some courts gave it the wider, others the narrower, application. Some courts varied in their appli- cations of the rule, and the same courts sometimes varied as new judges took the seats of their predecessors. No court attempted to actually define the term. No court attempted much more than to say that the particular case before it was one where common employment ought to be a defence to the action. Probably the term cannot be accurately defined, because it is impossible to anticipate the various kinds of employment, with their varying degrees of dissimilarity, which may arise. Several eminent authorities have declared it undefinable. Application of the Rule. If the rule of common employment had been restricted to persons at work side by side in a similar occupation, having a personal knowledge of each other's proficiency and habits of carefulness, it would not have been complained of as un- just. It might have been called a variation from a long- 24 STATISTICS OF LABOR. established pi-iaciple, and therefore wrong in theory ; bnt it would have been so restricted in its application that it would not have been to employees a cause of severe injustice. Without great injustice it might have been made still easier for employers by excepting domestic and menial servants, such as coachmen and house servants. It is the wide exten- sion of the rule that has done the wrong. Year by year, as case after case arose, and, through the ingenuity and persua- sion of corporation counsel one court followed the example of another, the rule of common employment was gradually extended. The tendency has been of late to give it the widest extension, and include within its operation every erriployee who, either directly or indirectly, is paid by the same person or corporation, that is, from the same till. Who are Fellow-Employees? An employee who in legal phrase is called a servant, is any person, male or female, minor or of full age, paid or unpaid, who works for another with his knowledge and con- sent. In the earliest case. Priestly ■?;. Fowler,* which was decided in 1837, two men at work for a butcher, one of whom was injured while they were riding together in his van, were declared to be fellow-employees. Here was a similar occu- pation, and they had as full knowledge of each other's care and judgment in loading the van as men can generally have. In the next case, Farwell v. The Boston & Worcester Eail- road,! which was decided in 1842, and in Hayes v. The Western Railroad,! decided in 1849, an engineer and a switchman, and two brakemen, were in the respective cases declared fellow-employees. In Hutchinson v. The York, Newcastle and Berwick Railway Company, § decided in 1850, and in Skipp v. The Eastern Counties Railway Com- pany, the facts were similar to the preceding. In Albro v. The Agawam Canal, || decided in 1850, the rule was extended, and an operative and his superintendent were declared within the rule. In Wiggett v. Fox,** decided in 1856, the rule of common employment was still further extended, and said to apply to an employee of a sub-contractor, whose nejjli- * 3 M. & W. 1. t 4 Met. 49. + 3 Cush. 270. j 5 Ex. 343. II 6 Cush. 75. ** 11 Ex. 832. EMPLOYERS' LIABILITY. 25 gence caused iu jury to the defendant's servant, and who was hired to do work by the piece. The wages of the employee were paid by the defendant, but he worked under the dii ac- tion of the sub-contractor. The rule was followed in this Commonwealth in Johnson v. Boston,* decided in 1875, where one Johnson, who was injured by the caving in of a sewor, was under the " direct charge and management" of a foreman at work for the city, and under the ' ' general supervision of the defendant's superintendent of sewers," and therefore under the general direction and control of the city, whose agent he was. In Gilshannon v. The Stony Brook Railroad,! ^ common laborer riding to his work gratuitously on the defendant 's gravel-train, and the con- ductor of the train, through whose negligence he was injured, were declared fellow-employees. In Brown v. Maxwell, | a workman and his foreman, whose orders the former was bound to obey, and in Sherman v. the Rochester & Syracuse Railroad Compan3%§ a superintendent and an employee bound to obey the orders of the former, were called fellow- employees by the courts of New York.|| Perhaps it is not necessary to specify further cases so particularly : A hod-carrier, and the carpenter who carelessly built the staging which fell in and injured him ; a baggage-master, and a draw-tender ; a brakeman, and a gate-tender; a factory girl, and the superintendent who gave the very order that caused her death ; a chief engineer, and the third engineer on board a steamer ; a painter at work on an engine-shed, and a freight-handler who upset the ladder on which he was standing ; a miner, and a work- man employed by a sub-contracting engine-builder ; the servant of a brewer, and a friend who gi-atuitously made the plans for a malt-bin, which fell in and injured the servant; a miner, and an overseer whose carelessness, while at work four miles away, caused an explosion, — have been adjudged by the courts fellow-employees. It will be seen by these decisions that the essence of common employment is a com- mon employer and payment from a common fund. *n8 M. 114. t 10 Cush. 228. + 6 .Hill, 592. § 17 N. Y. 153. II In Davis v. The Central Vermont Railroad, itlias been recently held, by the Supreme Coart of Vermont, that the master-builder, under whose superintendence a culvert was so negligently built that it fell in, is not a co-laborer with an ordinary employee who was injured thereby. 26 STATISTICS OF LABOR. The strictness with which the law of fellow-servant, by means of legal refiniugs, has been applied, and the acuteness which has been shown in discovering a relationship between employees, is worthy of notice. The legal mind has ex- pended, under the golden patronage of large corporations, its scholastic subtlety in extending the doctrine of common employment, until a superintendent entrusted with the entire control of the business of a large corporation, with absolute power to select and discharge his assistants, to hire or dis- charge fully and freely every man of the two or three thou- sand, perhaps, who are under him, is the fellow-servant of the boy who sweeps an oflSce, tends a loom, couples a car, or does any service, however menial. Because this doctrine was born in this Commonwealth, and has received here the tendercst care and widest development, it is sometimes called in this country the "Massachusetts doctrine." An acknowledged authority* thinks " our courts have had a tendencj'' to narrow the remedies for negligence by technical and unsound decisions, and especially to favor corporations at the expense of servants. If the Massachusetts doctrine should be adopted, it would afford complete immunity to a large class of employers, such as railroad companies, owners of large factories, foundries, mines, etc. , who are accustomed, and indeed often compelled, to intrust the selection of almost all their servants to one or more superintendents. It would be almost impossible to prove that a superintendent had a reputation for selecting incapable subordinates, and that his employer was aware of it ; yet, upon the theory which holds a general superintendent to be only a fellow-servant with those whom he employs, such proof would be necessary in order to maintain an action liy one of the servants against the common employer, on account of the negligence of another servant.'' Wilson V. Merryf is the leading English authority upon this subject. It is a case which arose in Scotland, and was there decided in favor of the plaintifi'. The injury was pro- duced by an exjilosion, caused by the negligence of an engineer employed by the defendants to sink a shaft in a coal- mine. Wilson did not know the engineer, had never seen * Shearman and Redfielcl on Negligence, sect. 102. t L. R. !■ P- 'i-'li. EMPLOYEES' LIABILITY. 27 him, and had no kno^vledge of his capacity for the worlc entrusted to him. The engineer was generally competent for the responsibility he had undertaken, but was so specially incompetent in this instance, that fire-damp was allowed to accumulate and cause an explosion. The case was heard in the House of Lords in 1868, and the decision of the Scotch courts overruled. The Lord Chancellor (Lord Cairns) said it was not a question of common employment, but (returning to the ratio decidendi ot the earlier cases) a question whether there was an implied contract of liability for u servant's nesjligence. This decision checked the practice, growing up in the English and Scotch courts, of discriminating between the various kinds of common employment, and returned to the principle that it was purely a question of contract, as had l)een laid down in Farwell v. The Boston & Worcester Rail- road,* decided sixteen years before, and in Hutchinson v. The York, Newcastle and Berwick Railroad, f decided in 1850. It rejected the view that there were various grades of superior Avorkmen, Avhose directions their inferiors were bound to obey ; that, beca\ise their superiors were the authorized agents of their employers, their employers should be responsible for their acts. By declining to con- sider the various grades of similar occupations, it virtually re-asserted the wide use and construction by the English courts of the term common employment, by maintaining, in the words of Lord Cranworth, "that workmen do not cease to be fellow-workmen because they are not equal in point of authority." It furthermore destroyed the theory of the Scotch judges that whether they were fellow-workmen was a question of fact for a jury. The Scotch judges, mindful of the injustice which they thought an indiscriminate application of the English rule would accomplish, decided that there M-as an important (question of fact for a jury to determine. They declined to say that, as matter of law, the person Avho sufiered the injury, and the person who caused it, were not fellow- employees, as had been decided in 18()3, in the similar case of Somerville v. Gray.^ They said that as there Avas, upon » i Met. 49. to Ex. 343. t 1 Macpli. 768 ; 3.i Jur. 445, 28 STATISTICS OF LABOR. the evidence, a reasonable doubt what relations of employ- ment existed between them, — a doubt whether an engineer who for a handsome compensation planned the work, leaving the general and special details of the execution to foremen and subordinates, was a fellow-workman with an ordinary laborer. There was an important question of fact for a jury to determine. It made no difference if the question was whether there was an implied contract between the injured servant and his employer. It was still a question of fact. This would seem to be a just and legal solution of the diiBculty. It would relieve the courts of the charge of trespassing upon the province of a jury. It may be thought unwise for the legislature to allow juries to exercise this right. It may be said that the interests of employers would suffer, if, upon any pretence or claim of right, actions for personal injuries caused by fellow- employees could be maintained against them, because it would encourage lawsuits. If the exercise of such a right would promote litigation, — and no doubt it would, — it is no argument against the granting of the right. Should rights remain uncreated, through fear of their enforcement? If so, all courts should be abolished, or all rights should be annulled. The State is bound to protect its citizens, and provide the means of enforcing their rights. Otherwise it is a government on paper, without power, and not entitled to respect. 'J'o hesitate to confer a right, lest its exercise may annoy the wrong-doer, is unjust ; and no State can ever afford to be unjust. Whatever is morally right should never be politically wrong. Every civil right has its remedy, or the right is worthless. It carries with it the right to be enforced by some appropriate action at law. The same reason which would refuse to confer a right les£ it should be enforced by a suit at law, would justify the- abrogation of every right that now exists. Summary of the Law. The law, as already explained, bearing upon this question of liability, may be stated in a compendious form by the fol- lowing propositions : — 1st. A person is liable to pay compensation in damages EMPLOYERS' LIABILITY. 29 for a personal injury done to another by his own wrongful act, neglect or default. 2d. A master is liable to pay compensation in damages for a personal injury done to another person by the wrong- ful act, neglect or default of his servant, while engaeed in the ordinary course of his employment. 3d. A master is liable to pay compensation in damages for a personal injury done to another person by the wrong- ful act, neglect or default of his servant, under the master's personal supervision and direction. 4th. A master is not liable to pay compensation in dam- ages for a personal injury done to his own servant by the wrongful act, neglect or default of another servant, acting within the ordinary course of his employment, (a.) Unless he has neglected to use due diligence in the selection of a competent and trusty servant, or unless, upon learning that the servant was incompetent, the master neglected for an imreasonable time to discharge him ; (6.) Unless he has neglected to use due care in selecting and furnishing suitable materials, implements, tools, machin- ery or plant to perform the service in which the servant who caused the injury was engaged ; or unless he neglected to use due care in keeping in proper condition suitable means to perform the service in which the servant was employed. The master's liability is not changed simply by the fact that the servant who caused the injury and the servant who was injured were engaged in a common employment. Common employment may be said to include every servant who is hired or paid, directly or indirectly, by the same master. The master's liability is not changed because both servants were engaged in different grades of a common employment. Xeither is it changed because the injured servant was act- ing at the time of the injury in strict obedience to the orders of a superior servant, a superintendent or foreman, and was injured in consequence of his obedience. Neither is it changed because the servant who caused the injury was employed by a sub-contractor, if both were under the general direction of a superior servant of the master. A servant or employee is liable to pay compensation in 30 STATISTICS OF LABOR. damages for a personal injury done to another servant b}' his own wrongful act, neglect, or default. A servant or employee is hound to reimburse his master or employer for damages sustained in consequence of his wrongful act, neglect, or default. But a servant or employee who has performed his work under the eye and immediate direction of his employer, is his agent, responsible (if to any one) to his master or em- ployer only, not to the person injured. While the master is not liable under any contract of war- ranty that the materials, machinery, tools, implements, and plant are free from defects, he is liable for injury caused by any secret defects known to himself, and when unknown to the workman, not disclosed to him. He is also liable for neglect to exercise due care in carry- ing on his work or business under a safe and proper system or code of regulations. And liable for neglect to conform to any statute regula- tions made by the legislature for the safe conduct or man- agement of his machinery. To any neglect or breach of these liabilities which the law imposes, the servant may by word or act assent, and thereby excuse the master from liability to him for personal damages. Law of other Codntries. It may be interesting in this connection to know whether the law of other States and countries conforms to the law of this Commonwealth in excluding an employer from liability for a personal injury to an employee, caused by the negli- gence of a fellow-employee. The Scotch Law. In 1680 the earliest Scotch case arose in which the rights of master and servant were adjudicated. But the first which decided the liability of a master for his servant's tort was Dalrymple v. M'Gill,* in 1804, where it was held that a master was not liable for the act of his servant in cruelly beating another's horse, because it did not appear that he approved or had knowledge of the wrong. In 1813, in * Hume, 292. E:\rPLOYERS* LIABILITY. 31 Linwood v. Hathorn,* the master was held liable for the act of his servant, without his knowledge or consent, in fellino- a tree with so little care as to cause the death of the plain- tiff's intestate, who -sras passing. This judgment was sus- tained on appeal to the House of Lords. This tendency to hold the master to a strict liability for the acts of his ser- vant was followed in Hill v. Merricks, f decided the same year, where he was held liable for the deliberate act of his servant in cutting down, without his master's authoritj-, the trees of a bordering estate. So strict an obedience was exacted by masters at that time, that it was perhaps thought unwise to make it possible for them to escape liability by denying, after the injury had happened, that they had con- ferred any authoritj-. Sword V. Cameron f is the leading case. It was decided in 1839, the year after Priestly v. Fowler, § the leading- English case, and declined to follow its authority. It was an action to recover damages from the owner of a quarry, because one of his quarrymen, while carelessly blasting a rock, had injured a fellow-workman. The court unani- mously held the employer responsible for the culpable neg- ligence and rashness of his ivorkmau. The next case, which arose in 1852, is Dixon v. Eankin, where the master was held liable for an accident in a coal-pit ; and the court, after reviewing Priestly v. Fowler, unanimously followed the rule of Sword V. Cameron. The ratio decidendi of the case is thus laid down by the Lord Justice Clerk : — " The law of Scotland as to the contract of service in regard to such matters as are here raised is perfectly fixed, and admits of no doubt whatever. The master's primary obligation in every contract of service in which his workmen are employed in a hazardous and dangerous oc- cupation for his interest and profit, is to provide for and attend to the safety of the men. That is his first and binding obligation ; I should say paramount even to that of paying for their labor. This obligation includes the duty of furnishing good and sufficient machinery and ap- paratus to enable them, with safety to their lives, to perform the work which they are employed in for his profit, and to keep the same in rea- sonable and good condition ; and the more rude and cheap the machinery, and the more liable on that account to cause injury, without great care, control, and superintendence in the working of it, the greater the obli- gation to make up for its defects by the attention necessary to prevent * Shaw's Scotch App. 20. t Hume, 299. 1 1 S. 493. ^ 3 M. and W. 1. 32 STATISTICS OF LABOR. such causing injury. In this obligation is equally included — as he cannot do everything himself — the duty to have all acts by others whom he employs done properly and carefully in order to avoid risk. The ob- ligation to provide for the safety of the lives of his servants by fit machinery is not greater or more inherent in the contract than the obli- gation to provide for their safety from the ads done by others whom he also employs. The other servants are employed by him to do acts which, of course, he cannot do himself; but they are acting for him, and instead of himself , as his hands. For their careful and cautious attention to duty, for their neglect of precautions, by vsrhich danger to life may be caused, he is just as much responsible as for such misconduct on his own part, if he were actually working or present; and this particulai'ly holds to the person he entrusts with the direction and control over any of his workmen, and who represents him in such a matter. The ser- vant, then, in the contract of service in Scotland, undertakes no risks from, the dangers caused by other workmen from, want of care, attention, prudence and skill which the attention and presence of the master or others acting for him, might have prevented. His master is bound to him in obligations which are to protect him from such dangers. The principle of the contract in England being different, of course different results follow." In Gray v. Brassey* the same doctrine was emphasized, and the judges again declined to follow the rule of Priestly v. Fowler till they had been overruled by the House of Lords. The Lord President said that the master was liable for his own negligence and the negligence of his authorized ser- vants ; and Lord Cunningham, who expressed his opinion with most vigor and positiveness, said, — " Although our reports for many years show that masters have been held liable to all third parties (without excepting fellow-servants) suf- fering from the negligence and unskilfulness of other servants hired by the employer, followed up by the late case of Rankin v. Dixon, in the Second Division, the books hardly show the extent of the understanding in Scotland, as it is believed there is no man of common intelligence and experience in our affairs who entertains a different opinion. Many in- dustrious people may have relied on that security ; and at any rate, when servants in this country have suffered severe injury from the fault of another workman hired by the master, we are not entitled suddenly to abrogate the responsibility of the latter, existing at the date of their em- ployment The law of Scotland on this point has been long established iind actud on, while this question is new in England, arising merely under an act recently passed ; and I must, with perfect deference, re- ranrk that the reasons assigned in the English cases for the distinction urged by the defender, do not appear to be altogether satisfactory or reasonable." * L5 Court of Sessions Cases, 135. EMPLOYERS' LIABILITY. 33 Five other cases folLnviiJ in the same line, — Baiid ?•. AdJie,* Browiilio v. Tounaiit,* O'Byrne v. Burn,* Hill v. Caledonian Riilway,* and Reid v. Bartonshill Coal Com- pany, already referred to, and which, upon appeal to the House of Lordsi, was overruled. What had been deilarcd law by twenty-five judges was changed i)y this judgment, and the law of both countries was made the same. The Irish Law. The Irish decisions, unlike the Scotch, follow the prece- dent of Priestly v. Fowler. The question was first raised in 1858, in M'Enery v. Waterfurd and Kilkenny Railway,! where the rule was affirmed ; and all the Irish decisions uni- formly accept it. The Law of France. This qiiesti m arose in England, Scotlnnd, and France about the same time. While the first English case was in 1837, and the first Scotch case in 1839, the first French case was in 1836. During the dajs of feudalism, and until the revolution of 1789, the authority exercised by the nobleman over his vassal was so great that the question would not be expected to have aiisen. The development, in its various phases, of the law of master and servant, was gradual in France, as in the other countries, following likewise much the samj course as the Roman law had followed. Pothier, in the " Traite des Obligations,"' by Dupui, page 278, says that the person who appointed another to perform a function must answer for the injury caused by the agent in exercising the power with which he has been delegated ; and if the agent was appointed by one or more persons, they are all liable, without exception, in solido. But should the agent, in a matter not connected with the exercise of the function, ill-treat or rob any one, the principle would not be liable. Nothing is said by him as to the liability of a master to his servant for the neglisrence of a fellow- servant, because the law had probably not reached in his day that stage of devel- opment. The case which arose in 1836 was begun in the court at » 16 Court of Sessions Cases, 490, 998, 1025, 569. t 8 Ir. C, L. R. 312. 3t STATISTICS OF LABOR. , Lyons. It was an action against a master to recover dam- ages to a workman, caused by the negligence of a fellow- workman in loading a cargo ; and the master was not held lia- ble. A similiar decision was rendend by the local Court of Toulouse on the 26th of June, 1839, in another case, where a workman was injured through the negligence of a fellow- workman, by the glancing of a knife, while they were lop- ping bushes. The ground of the decision was that the ser- vant was paid by the wages he received, for taking the risks of the eniployraont. (See Gilbert's edition [1855] of •' Los Codes Annolfe de Sircy."') But this case was tak. n on ap- peal to the Cour de Cassation, where this decision was re- versed on the 28th of June, 1841. The gist of the decision, as found in Dalloz's " Jurisprudence G6n6rale du Koyaumc,"* is as follows : " The master is liable for the injury which one of liis servants or workmen has caused by negligence to another servant or workman in a work which they were charged to carry out in common. The wages agreed upon between the servant and his master cannot exempt the latter from his liability towards the party injured." B(jth of the cases were decided upon a construction of Arti- cle 1384 of the Civil Code. The sections of the code which bear upon this subject are as follows : — " 1382. Tout fait quolconque de I'homme qui cause a autrui un dom- mage oblige celui par la faute duquel il est aiTiv6 a la repavcr. " 1383. Chacun est responsable du dommage qu'il a caus6 non seulc- niontparson fait, raais encore p ir sa negligence ou parson impi-udenee. " 1384. On est responsatile non seulement du dommage qne Ton cause par son propre fait, mais encore de celui qui est caus6 par le fait des ])ei'sonnes dont on doit r^pondre ou des choses que I'on a sous sa garde. Le p^i-e, et la m^re api-^s le decis du mari, sont responsable du doramages caupe par leui-s enfants miricurs habitant avec eux. Les maitres et les I'limmettants, du dommage caus6 par k'ui;s domesliques et pr6pos6s dans le fonclions auxquellcs ils les out cmploj-fis. " Les instituteurs et les artisans, du dommage caus6 par les 6!6ves et apprentis pendant le temps qu'il sont sous leur surveillance. '■ La i'esponsibilil6 ci-dessus a lieu a moins que les p^-ro et m6rc, insti- tuteurs et artisans n"6prouYent qu'ils n'ont pu empdcher le fail qui donne lieu a cette responsabilil^. " 1382. Every act of a man, of whatsoever nature, which causes injury to another, obliges him through whose fault it happened to repair the damage. " 13S3. Every one is responsible for the injury he has caused, not only by his own act, but by his negligjnce or imprudence. * Vol. of 1841, p. 271. EMPLOYERS' LIABILITY. 35 " 1384. A person is linblo not only for the injury ho causes by his own !ift, but also for that which is caused Ijy the acts of others for whom he is answerable, as well as for any injury to property under his charge " The father, and the mother after the death of her husband, are re- sponsible for any damage caused by their minor children who live with thom. " Masters and employers are responsible for any injury caused by their servants or employees in performing the duties in which they have been cmploj-ed. '• Teachers and artisans are responsible for any injury done by pupils or apprentices while under their care. " The above responsibility attaches, unless the father or mother, teacher or artisan, proves that he could not prevent the act which created the responsibility." Another construction, and an English con.struction of sec- tion 1384, was given by the judicial committee of the Privy Council, on appeal from the Mauritius, which is under the control of Fieuch law, in the case of Serandat v. Saisse.* Ihis in effect decides that the master (fcu-cman or overseer) is responsible for the acts of his servant done while acting under the orders, directions, and surveillance of his master (sous les ovdres, sous la direction et la suri-eiilance da commel- tant) ; which is equivalent to saying, a^ the English law^ says, done while acting within the scope of his employment. It is thus seen that the Civil Code holds the employer liable for the negligence of an employee to a (ellow-employee. The Law of Italy. The law of Italy is contained in Article No. 1153 of the Italian Code, which was modelled upon the French code ; iand the portion of it which relates to this subject is almost a literal translation of the French. The Law of Prussia. The Eoman Law has been called the Common Law of Prussia. There has been no complete codification of the Laws, but from Holtzendorff's Encyclopaediti, tui authoritative work, it appears that the principal or employer is liable, — 1. Where he has committed or directed a wrongful act. 2. Where he should have done the work himself. 3. Where he has not used due care in the selection or supervision of his agent or employee. •L.R., IP.C, 152. SG STATISTICS OF LABOR. Excpptions to those rules miike the principal liable (1) for whiit is called the contractuiil fault of his iigeiit ; (2) make the oocupicr of a room liable for au injury caused by throwing out anything; (3) make iimkeepers and ship- owners insurers of property intrusted to them. The employer is, in general, liable only for negligence in select- ing and supervising his servant. But, to relieve the hardship of this rule, owners of rail- roads, mines, quarries, pits, factories, are made liable, in certain cases, for the negligence of employees. The follow- ing is the substance of the law : — Article 1 is as follows : " Where, in the course of the work- ing of a railway, a man is killed or suffers personal injury, the undertaker is liable for the damage therel)y caused, so fiir as he does not prove that the accident was caused by vis major, or by the default of the person killed or injured himself." Article 2 is : " Where, in the case of a mine, a quarry, a pit, or a factory, the agent or the representative, or person employed to conduct or overlook the work, or the workman through his default in carrying out the work, has caused the death or the personal injury of any man, the owner is liable for the damage thereby caused." Article 3 regulates the measure of damage. Article 5 provides that the under- taker or owner referred to in Articles 1 and 2 may not exclude or limit the application of the rules contained in the articles to their advantage, by means of a contract; that is to say, by means of a special agreement, and that contracts in contravention of this article are to have no lesjal effect ; 'i.e., railway companies, mining companies, factory owners, owners of quarries, etc., may not contract themselves out of the liability imposed by the law. Law of the States and Ticreitories. A careful examination of the law of the States and Terri- tories shows that the rule of non-liability universally pre- vails, except where it has been modified by local statutes. With the exception of Ehode Island, recent legislation changes the rule only as it affects the liability of railroads. The following States and Territories have recognized the need of some change in the law : — EMPLOYERS' LIABILITY. 37 California. — See Codes and Statutes of California, 6971, sect. 1971; modified, however, by 6970, sect. 1970, to such an extent as to make the change of little importance. Bakola. — See Revised Code of 1877, p. 396, Article 2, which is precisely the same as the law of California, and seems to have been copied verbaiim from the statutes of the latter State. Georgia. — The old law is completely changed in this State, so far as liability of railroads is concerned. The meaning of the statute is unmistakable ; it reads as follows, viz., — Code of 1873, p. 521, 3036 (2981), — " Injury by co-employee. If the person injured is himself an employee of the company, and the damage was caused by another employee, and without fault or negligence on the part of the person injured, his eujployment by the company shall he no bar to the recovery." The old law is laid down in 15 Ga. 349 ; 30 Ga. 146. The new law was enacted in 1855-56. Iowa. — The law of this State is equally explicit in afford- ing a remedy in like cases. Revised Code of 1880, vol. 1, p. 342, at sect. 1307, reads as follows : " Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of agents, or by any mismanage- ment of the engineers or other employees of the corpora- tion, and in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers or other employees, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed ; and no contract which restricts such liability shall be legal or binding." The note to this section is as follows, viz. : " Under the statute, piior to the passage of chap. 169, laws of. 18(i2, it was held, in harmony with the consent of common law authority, that the principal is not liable for damages sustained by an employee for the negligence of a co- employee in the siime general service ; and that the 14th section of the act, entitled An Act to grant railroad companies the right of way, approved Jan. 18, 1853, did not change the general rule on the subject." (Sullivan v. TheM. & M. R. Co., 11 Iowa, 421.) After the act of 1862 took effect. 38 STATISTICS OF LABOR. it was held that while the 7th section thereof gave an employee of a railroad company a right to recover for injuries caused by the negligence of a co-employee, the liability was nevertheless measured by a different standard and rule, as to negligence, from what it is in case of injuries to passengers. While extraordinary care and caution are required with respect to passengers, ordinary care only is due to the employee." (Hunt v. The C. & N. W. E'y Co., 2t> la 3(53 ; Wright, J., dissenting, and holding that under the statute the same rule applied to both. See a long list of cases in support of the new doctrine in the same note ; viz., Eevised Code of Iowa, 1880, vol. 1, pp. 343, 344, 345 and 346.) Kansas. — (See Revised Laws of Kansas, 1879, p. 784, chap. 84, sect. 4914; taken from the Statutes of 1870, p. 869, sect. 4604.) The following law was passed in 1874, chap. 93, sect. 1. It took effect March 4, 1874, viz. : " Every railroad company, organized or doing business in this State, shall be liable for all damages done to any employee of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining .'■uch damage." The preceding section, 4603, while not relating to the question of damages done to an employee, is yet worth quoting, as showing the extreme caution which is required of such corporations in Kansas. It is as follows (4603, p. 869, vol. 2, Kansas Statutes) : " That railroads in this State shall be liable for all d;images done to person or property, when done in conse- quence of any neglect on the part of the railroad companies." (L. 1870, chap. 93, sect. 1.) This section has changed the law in reference to the liability i.f railroad companies for injuries done by their trains to caltle on the track. In an ac'ion for such injuries it is not error to instruct the jury that the company must exercise ordinary care, and is respon- sible for ordinary neglect. (St. Jos. & D. R'y Co. v. Grovei-, 11 Kansas, 302.) This section applies only where a railway company, as a company, has been negligent ; and does not apply to negligence between co-employees of a railroad com- pany. (Kas. P. ny Co. V. Salmon 11 Kas. 93.) The case, just cited, Kas. P. R'y Co. v. Salmon, was decided in EMPLOYERS' LIABILITY. 39 1873. It was, no doubt, owing lo the hardship felt in this case, that the law was changed in the following year. The jury, in the lower couit, had given a verdict for $7,500 in favor of the plaintiff, for personal injuries resulting in the death of her husband ; and a new trial was refused. The Ciise was then taken up on error, and decided against the plaintiff; and the law was changed, as before stated, the following year. Mississippi. — See Revised Code of 1880, p. 309, sect. 1054: "Every railroad company shall be liable for all damages which may be sustained by any person in conse- quence of the neglect or mismanagement of any of their agents, engineers or clerks, or for the mismanagement of their engines ; but for injury to any passenger upon any freight train not being intended for both passengers and freight, such company shall not be liable except for the groi-s negligence of its servants.'' Montana. — See L;iws of Revised Statutes, 1879, p. 471, sect. 318 : " That in every case the liability of the corpora- tion to a servant or employee acting under the orders of his superior shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employee not appointed or controlled by him, as if such servant or employee were a passenger." The foregoing provision was enacted as part of a general act providing for the formation of railroads in the territory of Montana, and was passed with considerable difficulty over the Governor's veto. See Laws, etc., of the Territory of Montana, 1873 (extra), 104 and 109, note. lihode Island. — See Public Statutes of 1882, p. 553, chap. 204, sect. 15: "If the life of any person, being a passenger in any stage-coach or other conveyance, when used by common carriers, or the life of any person, whether a passenger or not, in the care of proprietors of, or common carriers by means of, railroads or steamboats, oi- the life of any person crossing upon a public highway with reasonable care, shall be lost by reason of the negligence or carelessness of such common carriers, proprietor or proprie- tors, or by the unfitness or negligence or carelessness of their servants or agents, in this State, such common carriers. 40 STATISTICS OF LABOR. proprietor or proprietors, shall be liable to damages for the injury caused by the loss of life of such person, to be recovered by action of the case, for the benefit of the hus- band or widow and next of kin of the deceased person, one- half thereof to go to the husband or widow, and one-half thereof to the children of the deceased." Wi/i. ^- "Every railroad corporation shall be liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other servant or agent there- of, without contributory negligence on his part, when sust taiued within this State, or when such agent or servant is a resident of, and his contract of employment was made in, this State ; and no contract, rule or regulation between any such corporation and any agent or servant shall impair or dimin- ish such liability."' (Published March 18, 1875; approved March 4. ) Wyoming. — See Compiled Laws of Wyoming (1876), p. 512, chap. 97, sect. 1, entitled " An Act to protect rail- road employees who are injured while performing their duty." " Any person in the employment of any railroad company in this Territory, who may be killed by any locomotive, car, or other rolling stock, whether in the perfomiance (jf his duty or otherwise, his widow or heirs may have the same right of action for damages against such company as if said person so killed were not in the employ of said company ; any agreement he may have made, whether verbal or written, to hold such company harmless or free from an action for damages in the event of such killing, shall be null and void, and shall not be admitted as testimony in behalf of said company in any action for damages which may be brought against them ; and any person in the employ of said com- pany who may be injured by any locomotive, car, or other rolling stock, of said company, or by other property of said company, shall have his action for damages against said company the same as if ho were not in the employ of said company ; and no agreement to the contrary shall be admitted as testimony in behalf of said company." Sect. 2. "This act shall take effect from and after its passage."' (Approved December 7, 1809.) Missouri. — Revised Statutes (1879), Vol. I., p. 349, chap. EMPLOYERS' LIABILITY. 41 25, sect. 212 L "Damages for injuries resulting in death ill certain cases, when and by whom recoverable." " AYhcn- soever any person shall die from any injury resulting from or occasioned by the negligence, unskilfulness or criminal intent of any officer, agent, servant 'or employee, whilst running, conducting or managing any locomotive, cur, or train of cars ; or of any master, pilot, engineer, agent or employee, whilst running, conducting, or managing any steamboat, or any of tlie machinery thereof; or of any driver of any stage-coach, or other public conveyance, ■whilst in charge of the same as a driver ; and when any passenger shall die from any injury resulting from or occiisioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any steamboat or the machineiy thereof, or in any stage-coach or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, master, pilot, engineer or diiver sliall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage-coach or other public con- veyance at the time any injury is received, resulting from or occasicmed b^^ any defect or insufficiency above declared, shall forfeit and pay, for every person or passenger so dying, the sum of 15,000, which may be sued for and recovered: First, by the husband or wife of the deceased ; or, second, if there be no husband or wife, or he or she fails to sue within six months after siich death, then by the minor child or children of the deceased ; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment ; or, if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant, for his defence, to show that the dffect or insufficiency named in this section was not of a negligent defect or insufficiency. The words ' anj^ person ' in this section do not include a fellow-servant." (ti4 Mo. 112, overruling 36 Mo. 13; 59 Mo. 285. See Revised Statutes, p. 350, note.) Although at first sight this law would seem to afford a remedy for injuries sustained by a servant, and was quoted 42 STATISTICS OF LABOR. duijing the discussion in England to show that Missouri had changed the rule of the common law, the Court of Appeals has decided (one judge dissenting) that the phrase "any person " does not include fellow-servant, and that his remedy (see cases above cited) remains the same as it was before the statute was passed. ' It is thus seen that out of the whole number of States and Territories there are at least six of the former, viz., Geor- gia, Iowa, Kansas, Mississippi, Rhode Island, and Wiscon- sin ; and two of the latter, viz., Montana and Wyoming, which have entirely abandoned the old rule, and provided a remedy by statute for the better protection of railroad em- ployees; while there are two others, viz., California and, Dakota, which have recently passed statutes defining the limit of liability'. TJie Law of England. On the 7th of September, 1880, Parliament changed the law of England by passing the Employers' Liability Act (43 and 44 Victoria, chap. 42). The act was one fruit of the agitation of the rights and hardships of workingmen which has been in progress there for many years. The Corn Law agitation, which made Richard Cobden and John Bright two of the worst hated and best beloved of Englishmen, be- sides relieving the necessities of the poor, prepared the pub- lic mind for a more general discussion of the rights of labor, and taught workingmen everywhere to assert and defend their rights by systematic organization. Trades unions be- gan to make the laborer's influence felt, began to aid or counteract the power of the conservative press and maga- zines. The right of petition to Parliament, which in the hands of John Pym was so effective, in the hands of Bright and Cobden, Thomas Brassey and Macdonald, was power- less. The ease with which m.mster pi'titions are obtained, by means of quick communication through the agency of railroads and the post, has made a petition an almost worth- less catalogue of names. By means of organization, and the mutual sympathy and courage gained by association and the discussion of griev- ances ; by means of public meetings ; by protective union leagues, and strikes, so called ; by enlisting the influence of EMPLOYERS' LIABILITY. 43 public-spirited leaders whose hearts were tender to the wrongs and sufferings of poverty ; by refusing to vote, wherever the right existed, for any member of Parliament who would not advocate their cause ; by various other means, — some of which were wise, while others were un- wise, — the workingmen obtained the aid of public opinion, and compelled the English government to stand and listen. All that a just cause requires is the privilege of being heard. As the result of this popular but peaceful uprising, some of their grievances have been alleviated, and some of their wrongs have been righted. They have now more reasonable hours of labor, and wages more proportionate to the labor done. Miners have been protected in various ways. Rail- way corporations have been brought to a more strict account- ability to the public for the safety and convenience of their patrons. A few of the outposts in the great political battle- field of this generation between labor and capital, between the common people and great monopolies, have been taken, and an example set to the world of what political organization can accomplish. The question under discussion, which, like the question of tenant right now agitating Great Britain, is an outgrowth of this general awakening to the rights of labor, and the ab- solute necessity of protecting the laborer, has been before the people for several years. The explosions occurring so frequently in mines, — explosions by which miners were killed sometimes by scores, — the frequency of acci- dents upon railways, — collisions amounting sometimes al- most to disasters, — the more accurate knowledge of the number of persons annually killed iu the ordinary prosecu- tion of dangerous emjDloyments, which was furnished by the reports of the Board of Trade, — helped to awaken the pub- lic mind to the urgency of affording more ample pi'otection, especially to miners and railway employees. The subject was at first presented to the public, as is usual, by writers for the magazines. It was then taken up by the daily press. It soon found its way into Parliament, where at first it at- tracted but little attention. The Social Science Association took it up for discussion. One of the earliest to write about it was Mr. Joseph Brown, a Queen's counsel, who, however, 44 STATISTICS OF LAEOE. took a rather conservative ground. Mr. Bulwer and Mr. Commissioner Miller, botii of wliom are also Queen's coun- sel, took an interest in it; but the lawyers, as usual, were rather conservative. Lord Shand, Mr. Thomas Brassey, Sir Henry Jackson, Mr. Samuel Morley, the Earl De la Warr, Mr. Knowles, Sir Daniel Gooch, Mr. Shaw Lefevre, all of whom were members of Parliament, took an e.'irne.st interest in the subject, and wrote or spoke upon it. Mr. Lowe, now Lord Sherbrooke, was the leader of the cause in Parlia- ment, while Mr. Frederick W. Evans and Mr Macdonald, for whose services in behalf of workingmen thej^ are about to erect a statue, were among the chief promoters. As sooa as the subject attracted sufficient attention in Par- liament, the lobby was against it, and the attorneys for the railway, mining, and large manufacturing corporations and associations, also appeared in opposition. But the cause gradually gained friends ; and the more they opposed it, the more popular it became with the people and their I'epresen- tatives. Among the friends of the measure there was a dif- ference of opinion as to what should be the wording of the bill. Agreeing as to the end, they differed as to the means. Bills Brought into Parliament. Of the several bills brought into Parliament, one was introduced by Mr. Macdonald. By this it was proposed to do away with the defence of common employment, and allow aii employee to recover damages as other persons can. The bill was applicable to mines, manufactures, collieries, rail- ways, and to every employment, not excepting even domestic and menial service. If the butler trod upon the housemaid's toes, or spilled kerosene oil over the gardener's trousers ; if the coachman, while driving the cook to church on a rainy day, carelessly tipped over the carriage and spilled her out ; or if the housemaid left a coal-hod at the top of the stairs, over which the butler tumb'cd when coming down on a dark morning, — liability would attach to their employer. Had this bill excluded from its operation domestic and menial servants ; had the cook, coachman, butler, gardener, house- maid, seamstress, — all servants who live under the employ- er's roof, and become intimately acquainted with each other's EMPLOYEES' LIABILITY. 45 h;ihits, — been excepted from its operation, its chief objec- tion:ib]e feature would have been omitted. It would then have applied only to those servants, emploj-ees, or agents who are engaged in commercial, manufacturing, business employments, hazardous operations for profit, where this danger of loss may bo taken as one of the liabilities incident to the carrying on of business. Another bill was introduced by Earl de la Warr, one pro- vision of which made employers liable for the acts of their duly authorized superintendents, foremen, overseers, man- agers, or whomsoever had the right to give orders and direct the persons injured. The theory of this provision is, that because the injury is caused by obeying the orders, com- mands, or directions of a foreman or superintendent, whom the person injured is bound by his contract of service to obey, the employer should suffer the consequences of his agent's nesrlinrence. Another provision made the employer a warrantor of the tools and machinery he uses, liable for any secret flaws or defects, imperfections of design, etc., which may exist. The theory of this is, that, as one of them must take the risk of defect, the person who buys the too^s, machinery, and plant, who can accept or reject them, who can order them repaired when unsafe or worn out, have them removed and replaced, is the one to take the risk. By the law, as it is at present, he is only bound to use ordinary care in selecting, construct- ing, examining, designing ; he does not warrant the soundness of the materials used, or the suitableness of the design. (See Skerritt v. Scallan,* and Shearman and Eedfield on Negli- gence.) If, through a defect in the shaft, an engine breaks down, or, through a defect in design or construction, a bridge gives way, as at Ashtabula, he would not be liable. This bill would, however, make the railroad liable to both employees and passengers, by virtually saying that the per- son or company who builds or pays for the engine or bridge, who has the right to examine, test, inspect, accept, or reject, shall take the risk, instead of the too trusting employee or passenger. It likewise, perhaps, extended, as did the former bill, the liability for the acts of domestic and menial servants. * 11 I. E., C. L. 389, sects. 86, 87. 46 STATISTICS OF LABOR. A third hill which was introduced was endorsed by Mr. Brassey, Mr. Morley, Mr. Michael Bass, and Mr. Sullivan. It contained the same provisions as the preceding, except the last, and limited common employment to any manufac- ture, trade or I)usiness carried on for profit. A fourth bill was brought in by the Attorney General, which was supposed to represent the views of the Gladstone ministry. This was the least radical of all, and seemed intended to carry out the views expressed in the Report of the Parliamentary Committee. None of them contained any clause allowing an employer to make a contract exempt- ing himself from the liabilities imposed by each bill. The Subject considered by Two Select Committees of Parliament. The English Parliament, in the session of 1875-6, ap- pointed a select committee to consider this subject, another in 1877, and, later still, other committees. The first con- sisted of fifteen members, and included Sir John Holker (then Attorney General), Mr. Lowe (now Lord Sherbrookc), Mr. Wyndham, Sir Henry Jackson, Mr. W. Stanhope, Shaw Lefevre, Sir Daniel Gooch, and Mr. Macdonald, and had full power to send for persons and papers. They be- gan their session with an earnest desire to understand the subject; and, during the summer of 1876, summoned before ihem the men best informed upon the subject in the kingdom, — parliamentary agents for trades unions, barristers who had made the subject in all its bearings a special study, and were fiimiliar with the law and its workings, secretaries of associations of railway employees, and builders. As they were unable to complete their work during that session, they reported the evidence in print, and recommended a further investigation. The subject was again taken up at the next session, and most of the same members were re-appointed on the select committee. At this session, master builders, large employ- ers of labor, secretaries and agents of associations of miners, proprietors of large mines, some of the ablest mining engineers in the country, managers of large collieries, chair- men of mining associations, managing directors of extensive EMPLOYERS' LIABILITY. 47 iron and coal companies, Lord Justices of the Court of Appeid, — Mr. Justice Brnmwell and Mr. Justice Brett, — l)!irlinmontary solicitors, managers of the London and North Wostfrn, Gnat Wcsl(rn, and Great Northern Railways, Kidderminster carpet mamifatturers, managing directors ot locomotive works, and others, to the number, in all, of twenty-eight, gave their testimony. The examination of the witnesses was generally conducted by Mr. Lowe, each member of the committee asking whatever questions he chose. Mr. Lowe's Report. Two draft reports were submitted for adoption by the committees, one by Mr. Lowe, the other by Sir Henry Jackson. After laying down the universally accepted prin- ciple expressed by the maxim. Qui facit ptr alium facit per se, he says : — " G. Your committee are warranted, by the evidence of tlie eminent judges and banisters examined before ttiem, in regarding tliese judicial innovations witli tlio utmost jealousy and dissatisfaction. They ob- serve with some surprise that the common law, as it was believed to be up to 1837, has been entirely altered by judicial decision ; and that not in any abstruse or remote point, but in a matter which most nearly concerns the Interests of hundreds and tliousands of Her Majesty's sulijects. " 7. This has been effected liy means which appear to the commitlee to be of the most questionable nature, — the inventing and enforcing a contract which never really existed Where, beside what is expressed in a contract, there is something else in the contemplation of both parties which they would have expressed liad either party required it, the committee can understand that tlie courts of law may be perfectly justified in saying that such a contract must be taken to have been entered into. But, so far from this being the case, the contract which tlie judges have assumed to be entered into by every operative, involv- ing as it does the cession of most important rights without any consid- eration, is utterly unknown to the person to be bound by it, and was in its full extent, as will presently appear, unknown to the judges them- selves. " 8 Lord Justice Bramwell remarks, ' that the expression which has been used, that a servant contracts that he will make no claim against tlie master for injury done by the negligence of a filiow-servant, is an unfortunate one The obvious difficulty in that raotle of expressing it is, that neither master nor servant ever think of such a matter when they enter into the relation of master and servant.' Justice Brett says (Question 1919), '1 say now that the law is that you cannot properly import any condition or stipulation into a contract, except one which 48 STATISTICS OF LABOR. in the minds of all reasonable men must have been in the contempla- tion and intention of both parties to the contract at the time it was made.' " 9. Another hardship connected with the proceedings of the judges is the gradu;il expansion of the contract which they created. They held that a fellow-servant could not by liis carelessness impose any liability on his master; and then the question became all-important, who was a fellow-servant? By degrees it has been held that every one except the master in an industrial undertaking is a fellow-servant with every other person employed in any capacity; thus the implied contract has swelled gradually, till the term fellow-servant is no longer required, and the rule may be stated thus : The master is liable for his own per- sonal negligence, and for no other. Had the court foreseen this result, all discussion as to what constitutes a common employment would have been unnecessary. " 10. Had the law been laid down at once in the full extent to which it has gradually advanced, public attention would doubtless have been awakened, and the whole question fairly considered by Parliameht; but the doctrine has been expanding for thirty-five ye.irs, and has only ju^t reached its full development in the Court of Sessions in Scotland, to the effect that the servants of a contractor are the fellow-servants of the servants of the person with whom he contracts. "11. The question for the committee is, how they are to deal with a state of things' which Justice Urett fairly describes as a bad exception to a bad law. Shall the}' maintain the exception on account of the badness of the law, or fall back on the law on account of the badness of the exception ; or shall they seek some middle course, which may extricate them from both ? " 15. The committee, therefore, recommend that the funds of every industrial undertaking shall be liable to compensate £),ny person em- ployed in such undertaking for any injury he may receive b}' i-eason of the negligence of any person exercising authority mediately or imme- diately derived from the owners of such undertaking, with this qualifi- cation, that the liability to indemnify shall not extend to persons who, though exercising authority, ure bjna Jide employed in actual labor as distinguished from superintendence." ***** The Comnditee's Report. The draft report of Sir Henry Jackson, less radical than Mr. Lowe's, was substanlially adopted, and signed by a majority of the committee. I^he report is as follows : — " 1. The questions referred to your committee, though apparently two, are in reality but different modes of presenting one and the same inquiry ; and they can hardly be considered apart from the much larger question of the nature and extent of the liability of employers for injuries to their servants in the course of their employment. EMPLOYERS' LIABILITY. 49 " 2. At pv^sent a master is not liable for any injury which arises from the act or clefault of any fellow-servant, whether that fellow-servant be in aposition of authority or not ; and in ascertaining whether the person to whose act or default the injury is due is a fellow-servant, the widest possible oonstruotion is jiiven to the term, ' Common Employment.' "3. That a man should be lialde for injury occasioned by his own act neglect or permission, is, obviously just. That a man should be liable for injury oocaioned by acts which he has neither done or permitted, which have resulted from no neglect of his, or in disobedience to his order, or which he may have forbidden, is a n suit the justice of which it is not ea.=y at once to recognize, and one which some eminent lawyers do not hesitate to describe as ' essentially unjust.' Such, however, is, and since, the reign of Charles the Second, appears to have been, 1 he law of this country as to injuries occasioned by servants in the course of their employment to persons not in tlie same employment. For such injuries the master employing the servant is lialjle, notwithstanding that the acts which occasioned them may not have been ordered or author- ized, or may even have been forbidden. " 4. There is a strong concurrence of authority against the justice of this law, though there seems to be some difference of opinion as to its origin and historical development. S.ime regard it as having been established on considerations of policy, as distinguished from justice; others as a mistaken application of the maxim, Quifacitper alium facit per se. A very slight examination of the principle involved in this maxim, which obviously relates to agency, will show that it is inapplica- ble to cases where the act causing the injury is done eitlier without authorit}', or in defiance of it. The proliabilily is, that the rule was an application of the maxim respondeat superior ; and this probability is increased by the consideration that none of the decisions which have explained and determined the law have ever extended it beyond the limits to which that maxim would properly apply. The state of society in which tlie maxim renpondeat superior obtained, had passed away long before the English law was established ; but there is a certain analogy, so far as affects third pai'ties, between the position of a master hiring, servants, and a master or pilerfamilias employing his slaves or chil- dren. In each case there is a single task or enterprise carried on by several persons, and it is not difficult to see how the master, the supe- rior, he who puts the enterprise in motion, was held responsible to per- sons outside for any injury resulting from the enterprise, by whomsoever occasioned ; an analogy which may explain, if it does not justify, the law. " 5. But there is no record that the master or superior was liable for injury occasioned to any person engaged in the enterprise. The slave or child under the Roman law had no choice and no rights ; and the Eng- lish courts have always considered that a servant, who is free to choose whether he will or will not take part in the enterprise or task, by the contract of service itself undertakes to run all risks necessarily inci- dent to the employment, the principal and most obvious of which is the injury which the negligence of others engaged in the same employment may occasion. 50 STATISTICS OF LABOR. " 6. For iipvvavtls of one hundred and fifty years after a master was held liable for injuries occasioned to strangers, no attempt to extend the liability to cases of injury occasioned by fellow-workmen is recorded ; and when at last such an attempt was made in the well-known case of I'riestly v. Fowler, which was decided in 1837, the court at once refused to extend the principle to cases to which it was not applicable, and that on the broad ground that a man is free to take the employment or not, but that if he chooses to do so he takes it with all attendant risks. The decision in the case of Priestly r. Fowler, if not the whole of the reason- ing on which it is based, has been generally approved and followed by the courts in this country and in the United States. "7. This julgment has, however, been the subject of much adverse criticism. Jt is contended that, who her the law throwing on the master the responsibility lor injuries occasio;ied to strangers be just or unjust, the exception in regard to injurie-t occasioned by fellow-workmen is (^i^nply ail exception to an established rule; and it is regarded as an exception specially directel against and injurious to those who from their po-ition ai e most in want of the protection of the ru'e. Hut your committee consider that this \ Jew is not well founded; and they have the high authority of the late Lord ( hief liaron Pollock for saying t la* the court, i'l Priestly i!. Fowler, laid down no new l,iw. He says, 'I believe it was t'le 1 iw ; T thoroughly understood it to be so be.ore a ten- tion was i ailed to it.' The true principle of law is, that no man is responsible, except for his own acts and defaults ; and the lule relied upon is itself not a ruli', but an exception, which the courts have ex- plained and confin 'd within proper limits. "8. It is, howe.er, to bj observe 1 that a series of decisions by the Scotch judges denied that the decisions of the English courts were consonant with the law of Scotland. In this condition of the authorities, an appeal was presented to the House of Lords in 1866, in the course of which the Law Lords aflSrmed that the law was identical, for England and Scotland. " 9. There can be no doubt that the effect of abolishing the defence of • 30inmon employment' (as has been actually proposed in a bill sub- mitted to the Hous ■) would effect a serious disturbance in the indus- trial arrangements of the country. Sooner or later, the position of master and workman would find its level by a re-adjustment of the rate ofw.iges ; but in the meantime great alarm would be occasioned, and the investment of capital in industrial undert ikings would be dis- couraged. Your committee cinnot express their opinion on the ques- tion of the public policy involved in the exisfng law, belter than by adopting the language of the distingflished American judge, who decided the case of Farwell v. The Boston & Woioester Riilway Corporation: ' when sever.il persons are employed in the condurt of one common enter- prise or undertaking, and the safety of each depends much upon the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the other, can give notice of any mis- conduct, incapacity or neglect of duty, and leave the service if the common employer will not take such precautions, and employ such EMPLOYERS' LIABILITY. 51 agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be' done by a resort to the common employer for an indemnity, in the case of loss of life by the negligence of each other.' " 10. Your committee, therefore, are of opinion that no case is made out for any alteration in the law relating to the liability of employers to their workmen for injury in the course of their employment, except in the matters to which fhey now proceed to refer. " 11. A master is not altogether free from liability to his servant for injuries resulting in the course of his employment. If it can be shown that the master has omitted to provide the servant with proper materials and resources for the work (such as engines or scaffolding;, or has been negligent in the choice of the persons to whom he entrusts the supply of such materials, or the arrangement of such work, or has been guilty of want of care in the selection of proper servants, the master is liable, ev«n to his own servant, for any injury resulting from such omission or negligence. But, to establish this liability, it must be brought home to the master personally. The development of modern industry has created large numbers of employing bodies, such as coiporations and public companies, to whom it is not possible to bring home such per- sonal default ; and there are other cases in which masters leave the whole conduct of their business to .agents and managers, themselves taking no personal part whatever, either in the supply of materials or in the choice of subordinate servants " 12. Your committee are of opinion that in cases such as these, that is, where the actual employers cannot personally discharge the duties of masters, or where they deliberately abdicate their functions, and ■ delegate them to agents, the acts or defaults of the agents who thus discharge the duties and fulfil the functions of masters, should be con- sidered as the personal acts or defaults of the principals and employers and should impose the sauie liability on such principals and employers as they would have been subject to had they been acting personally in the conduct of their business, notwithstanding that such agents are technically in the employment of the priocipals. The fact of such a delegation of authority would have to be established in each case, but this would not be a matter of difficulty. " 13. Your committee are further of opinion, that the doctrine of com- mon employment has been carried too far, when workmen employed by a contractor, and workmen employed by a person or company who has employed such contractor, are considered as being in the same common employment. Such cases do not come within the limits of the policy on which the law has been justified in paragraph 9 of this report." Employers' Liability Act. (43 and 44 Vic, ch. 42.) Ill accordance with the recommeadations of the committee, a bill was prepared, which, as amended in the House of Lords, oa motion of Lord Beaconsfield, provides, in sections 52 STATISTICS OF LABOE. . 1 and 2, that common employment, so called, shall not be a defence where a workman receives personal injury : — 1. By reason of any defect in the ways, works, machinery or plant connected witli or used in ttie business of tiie employer, wliicli defect existed in consequence of the negligence of the employer, or of an em- ployee by him entrusted with the duty of guarding against any defect. 2. By reason of the negligence of any person entrusted with super- intendence. 8. By reason of the negligence of any superior workman whose orders the person injured was bound to obey. 4. By reason of obeying proper rules or by-laws, or any rule or by- law duly approved by certain public officers therein specified. 5. By reason of the negligence, on a railway, of any person at the time in control of the train. Unless the person injured knew, or failed, when necessary, to give notice of the defect which caused the injury. Section 3 limits the sum recoverable as compensation. Section 4 limits the time for recovery of compensation. Section o makes any penalty received by any other act part payment. Section 6 relates to the trial of actions. Section 7 provides for the service of a notice of any injury received. Sections 8, 9, and 10, respectively, defines terras used in the act, tell when it shall go into operation, by what title it shall be called, and how long it shall continue in force. Faewell V. Boston & Worcester Railroad Considered. This case was decided in 1842, and was a case of first im- pression. It contains substantially all the arguments which in forty succeeding years have been adduced by the courts in favor of the rule therein adopted. The cause of action was the crusliiug of an engineer's right hand, through the negligence of abrakenian, a fellow-servant in the defendant's employ, in throwing the engineer's train from the track. The opinion is by 'Chief Justice Shaw, and follows, with elaborations, the line of defence laid down in Judge Fletcher's brief for the defendant. Charles G. Loring was counsel for the plaintiff. Judge Shaw, in his opinion, says that the case must rest either, first, upon the principle known as respon- deat superior, which makes every master liable, in tort, to third persons, for the negligence of a servant, so long as the servant acts within the ordinary scope of his authority (1 Bl. Com. 431; and 3 McQueen, H. L. 300-306); or, second, the master must be liable in contract, because public EMPLOYERS' LIABILITY. 53 policy requires the law to imply, in the contract of service, a contract of indemnity against the negligence of a fellow- servant. The principle of respondeat superior, requiring reparation, rests upon the great principle that every member of society is in duty bound to so manage his affairs as to do no injury to another. It matters not whether he acts by his own hand or by that of his duly authorized agent or servant ; because whatever he does by the hand of another, he does by his own hand. (Qui /acit per alium facit perse.) This ground, which is, as has been seen, the one upon which the advocates of a change of the law rest in part their arguments, was unfortunately' abandoned by Mr. Loring, the plaintiflfs counsel, and very little considered by the court. The second ground was said to rest upon the further prin- ciple that where, in the contract of service, there is no ex- press contract determining whether the master is liable, the court has a right to make for the parties what is called an implied contract. Public policy, it is said, allows and re- quires the courts to imply a promise, " arising from the duty of the master to be responsible to each person employed by him, in the conduct of every branch of business where two or more persons are employed, to pay for all damage occa- sioned by the negligence of every other person employed in the same service." His dut}', if it exists, would only be analogous to the duty resting upon every common carrier, to make reparation for any injury to merchandise entrusted to him which was not caused by the act of God, or the act of a public enemy ; as it would also be analogous to the obli- gation resting upon an innkeeper to make reparation for any injury occurring to the baggage of his guests. Having carefully laid down the two legal propositions upon which either an action of tort or an action of contract can be maintained, Judge Shaw proceeded to argue that the servant cannot recover in tort, because the relations existing between him and his master are " regulated by the express or implied contract between them ; and he cannot recover in contract, because, although there is an express or implied contract, it is not a contract of indemnity." There seems to be a fallacy in this reasoning. It is based upon a wrong premise of fact, that there are no causes of action 54 STATISTICS OF LABOR. with remedies, both in tort aud contract. If stated in the syllogistic form, it would read thus : — Major premise, — There is no cause of action for which there is a rc-medy both in tort and contract. Minor premise, — If the servant has any remedy, it is in contract. Conclusion, — But there is no remedy in contract; there- fore, the servant has no remedy. The major premise is false in fact, because there are causes of action with a double remedy both in tort and contract. For instance, a person may become liable by the same act (which is the cause of action) in tort for an assault, and in contract for a breach of a bond given the plaintiff to keep the peace. Again, a com- mon carrier may be liable in tort for the conversion of merchandise entrusted to him for safe delivery, and in con- tract for breach of a special promise to deliver it to the per- son to whom it is directed. The person injured may be obliged to elect whether he will proceed in tort or in con- tract, but he neveithelesshas both remedies. The dilemma, then, contained in the major premise of Judge Shaw, is what in logic is called a false dilemma. A servant who is injured by the negligence of a fel'Pow-servant has likewise, say the advocates of a change of the law, two remedies, — one in tort, under the principle called respondeat superior, and one in contract, under an implied contract of indemnity ; though, before trying his action, he may be obliged to elect which remedy he Avill pursue. If, however, he has only one of these remedies, it matters not for the purposes of this discussion whether it is a remedy in. toit, as trespass on the case for consequential damage, under the principle of respondeat superior, or a remedy in contract, by virtue of an implied contract. Eeasons in Support of the Law as it Exists Considered. A careful consideration of this opinion, of the opinion of Lord Abinger in Priestly v. Fowler,* of the opinions of the South Carolina judges in Murray v. S. C. Railroad, -f of the judgments of the House of Lords in the cases of the Bartons- * 3 M. & W. 1. t 1 McMalloii, 385. EMPLOYERS' LIABILITY. 55 hill Coal Co. v. Ecid and v. McGuiie,* of the opinion of Judge Strong in Sherman v. The Syracuse & Rochester R. R.f (the first case in New York which does any more than quote the earlier authority of other courts), and various other leading cases in the various States, has deduced the following reasons in support of the law as therein laid down, which, in a spirit of candor and deference, will be carefully considered seriatim. I. — Is the Servant the Master's Agent? The master, it is said, is not responsible, because the ser- vant who caused the injury is not his agent. That he is his agent for certain purposes there can be no doubt. He is his agent for certain purposes by virtue of his being a servant. Whether he is an agent for the purpose of doing the particular act which causes the injury, is the real question, which must carefully be kept in mind to avoid, what is the cause of so many disagreements and discussions, confusion in the use of terms. This is a question to be de- cided by an interpretation of the words which were used when creating the agency, aided by a full knowledge of the authority usually conveyed by terms of general agency. For instance, whether A has authorized B to do a certain act, is a question of fact to l)e decided by interpreting the words A used. If, for example, A was the owner of a cotton-mill, and should tell the engineer to turn the steam on five minutes before the usual time, and while the weavers were cleaning their looms ; and if one of them through this act of negligence should be injured, there would be no doubt that the engineer did a certain act ; no doubt that, for the purpose of doing this act, he stood in the owner's place, act- ing within the scope of authority conferred ; no doubt that, in the usual aud legal meaning of the words, he was his agent. But suppose, further, that the owner denies that ho told the engineer to turn on the steam. How can the question of agency be determined? It is a question of fact, is it not, and not a question of law? And, as a question of fact, and not of law, it must be determined upon a full knowledge of * 3 McQuten, 266 and 300. 1 17 N. Y. 153. 56 STATISTICS OF LABOR. all Ihe circumstances, the res gestae, as presented by the tes- timony of whoever knows about the circumstances. And suppose, further, that there were no words used, but that the steam was turned on, as is usually the case, by virtue of a general authority as engineer. It remains still a question of fact, which must be determined with the aid of any evidence which can be given as to the authority which this engineer had, or which engineers usually have. It is still, however, a question of fact. If the engineer did an act which caused an injury, is it for the court to say, as matter of law, that he was not, for the purpose of doing this act, his employer's agent? Had the steam been turned on in the exercise of a general authority, and no injury had resulted, the agency would not have been disputed. Now that an injury has resulted, can the court say, as matter of law, that because the act happened to work an injury, no agency existed ? It is the same act, whether it did or did not cause an injury. The circumstances of no two cases are alike, and each question of agency must be decided upon its own particular circumstances. Are they not questions of fact which, as was done by the Scotch judges in "Wilson v. Merry, should be left to a jury ? Should the judges attempt to say before- hand that in every case where a servant injures a fellow- servant ho is not his master's agent? Are they not passing upon a fact which should be left to a jury? Are they not stepping beyond the boundaries of their legitimate province? Is not law so made what is called judge-made law? If. — Is the llule of Non-Liability the Better Policy 9 " Considerations of public policy and general convenience, which are the basis upon which implied contracts rest, re- quires that employees should take their own risk. For example, railway travel would be less safe if the employee knew that in case of injury he could recover damages of his employer. To compel him to take his own risk is strongly calculated to secure his fidelity and prudence." This is an argument which is of course based upon experi- ence. It means that, from a knowledge of human nature, there is danger that employees might injure themselves for EMPLOYERS' LIABILITY. 57 the express purpose of recovering damages. This argument (first used by Lord Abinger in Priestly v. Fowler), has been repeated often iu defence of the existing rule. It is, however, a question which judges are uo better capable of deciding than other equally intelligent and experienced men, and one of those questions of fact which the policy of the law has usually referred to juries. While, no doubt, there are those who would be purposely careless, — for all men are not always honest, — are not such men exceptional? Most people are honest. Most people are prudent. Most people prefer sound limbs and bones ; prefer life, he.ilth or happiness to death, suffering or misery. Most people are averse to pain. Is not this as true of rail- road employees as of the generality of people? Rules of law are made to meet the majority, not the minority, of cases. Is it just or wise to establish so important a rule through fear that a few persons should be dishonest to their emploj'ers, and cruel to themselves? Is it not compelling too many to suffer for the probable sins of a few? Is it not depriving too many of a benefit, lest a few should acquire more than they deserve? Is it not refusing to do justice to the many, lest the few should abuse a right? Is it not making too low an estimate of human nature, to think that employees would injure themselves, and perhaps others, in order to get money damages ? Should the lives and happi- ness of all railroad employees, and perhaps the happiness of their wives and children, be left without the damage-right allowed to passengers, lest a few dishonest officers should abuse the right by exposing themselves to the risks and un- certainties of an injury? It should be remembered, as has been elsewhere suggested, that this argument, based upon public policy, is one which comes more properly within the province of legislators, who, in a form of government like ours, are the rightful determiners of what laws the public policy of the country requires. III. — Does the Employee Take the Risks of the Em- ployment 9 The employee, it is said, takes the risks of the employ- ment by entering into it with his eyes open. 58 STATISTICS OF LABOR. That in a legal point of view, so long as the law remains as at present, he takes the risks of the employment, there is no doubt. If he is injured, under the law, as it exists, he can recover no damages ; and every man, according to a well-known legal maxim, is presumed to know the law. But the argument rests, not upon this presumption of law, nor upon the fact that a servant, if injured, cannot, under the law, recover damages of his employer. It must rest, in order to have any force, upon another presumption, — a presumption of fact, — that the employee, at the time of entering into the contract of service, actually thinks of the question of damages, and actually decides to take his own risk. Ill order that this argument ma}' have full force, it is necessary to presume that the employee at such a time actu- ally stops to think of the possibility of his being injured ; stops to think of the question of liability for damages in case of injury ; that he realizes, with full knowledge of the law, that his employer is not liable, but that he must take upon himself the risk of recovering damages. Unless the employment is a dangerous one, it is improbable that, when engaging to work, the idea of personal injury ever enters his mind. When he enters into a dangerous employment, it is improbable that he would think of the question, who is liable to him for damages in case of injury. Though all men know that they must die, few men, in a healthy state of mind, ever quite realize that the shaft of death is likely to strike them at any moment. We see men dying around us, — friends and neighbors ; see others sick or meeting with accidents ; but never quite expect that a similar fate will overtake us. We read that an acquaintance has been killed by a railroad accident; has received an injury from a fall of snow while passing a building ; has been drowned by the capsizing of a boat ; has been accidentally shot : but we go on as before, riding in cars, sailing in boats, or carrying fire-arms. Is not the same true of the employee? Does he stop to think that he may be injured? that he may be in need of compensation in damages? that he cannot recover them of his employer? How many passengers, when they buy their railway tickets, stop to think that they do not take their own risks ? Why should these same persons, when EMPLOYERS' LIABILITY. 59 entering into a contract of employment, stop to think that they do take their own risks ? The argument that the em- ployee takes the risk of the employment with his eyes open seems to be open to exception. IV. — Is the Price of Labor Proportionate to the Risic of the Employment 9 * It is further said in these judicial opinions, as a corollary of the preceding argument, that the employee is paid for taking the risk by proportionately higher wages. This argu- ment, like all of the preceding, is based upon a presumption of fact, derived from experience. What regulates the price of labor? Political economy, which deals so much with general theories, tells us that the price of labor generally depends upon the ratio of the demand to the supply, which itself is regulated by the pro- portion between the number of laborers and the circulating capital employed directly in the purchase of labor. There are various other causes which assist in determining the price of labor, such as the state of trade, the price of food, rent, the price of the commodities used by laborers, the increase or decrease of population ; but, more than all, the prevailing standard of living. There are various causes of the increase or decrease of the price of labor inherent in the nature of the employment ; such as the cleanliness or dignity of the employment, the ease or difficulty with which it is learned, constancy or inconstancy of occupation, the degree of confidence required, the responsibility reposed, the certainty or un- certainty of success. There is also no doubt that wages ought to depend in part upon the security or danger attend- ing an employment. But whether they do or not cannot be known except theoretically, as facts which seem reasonable are taken for granted — upon the theory that what ought to be is — without an accurate knowledge of a vast mass of facts, and a calculation and comparison of figures. This does not appear to have been done by the judges, nor by any one, with much mceiy and accuracy. The committees of the English Parliament made some examination of the question, by asking the opinion of various employers of • See p. 85, post. 60 STATISTICS OF LABOR. labor and men of large experience in business affairs. The investigation elicited the fact that the rislj of the employ- ment had very little effect upon wages. A Somersetshire collier, working in an employment more than ordinarily dangerous, receives 3s. 6d. a day ; while a joiner, whose occupation is attended with little if any danger, receives 5s. a day. The problem can be determined in a general way, by ascertaining whether railroad employees are gener- ally better paid than workmen in less dangerous occupations, than farmers or laborers, for instance, in proportion to their services. It can be determined with a little more nicety by ascertaining whether brakemen and shunters, who are en- gaged in the most dangerous employment, that of coupling cars, are really paid more or less than other employees of like capacity. On the English railways the shunter receives from 20 shillings to 30 shillings per week, — less pay than any other employee, and about half as much as an engineer. A "green" shunter — one who has just begun to work — receives from 20 shillings to 22 shillings ; while an experi- enced shunter, who is more useful to the company and less careless of himself, receives on an average from 25 shillings to 30 shillings per week. Both receive less than a porter, whose labor is less dangerous. V. — Grades of Common Employment. As soon as the term common employment came into use, it was evident that there would be difficulty in defining its limi- tations. Should common employment, as a defence to actions for damages, include all employees who work for a common employer, or only those who work side by side in the same kind of occupation? Should it include, for instance, all the men who work in a colliery, or should it distinguish between the half dozen or more different occupations, — the men who go first into the mine, to test for coal gas, and see if the mine is fit to work in ; the miners, who work with pick and shovel ; the men at the mouth of the pit, who attend to the hoisting machinery ; the foremen of the various gangs of workmen ; the managing engineer and his special assistants, who give the general directions as to the sinking and work- EMPLOYERS' LIABILITY. 61 ing of the shaft. In a crude way, Lord Abinger, in the first case decided, cited by way of analogy various instances where, as he thouglat, the law would worli a hardsliip, most of which were taken from household and menial service, where no sensible man claims that distinctions should be made. But now that the gigantic and manifold operations of business have outgrown the crude simplicity of those primitive days of the development of manufactures, rail- roads and the mechanic arts, the importance of drawing distinctions is more apparent and necessary. The Scotch judges, with singular foresight and discretion, saw that the rule could not with justice be made to apply to every person who worked for one employer, and was paid, directly or indirectly, from the same purse ; saw the injus- tice of making a workman suffer in consequence of the neg- ligence of one whom he did not control, knew nothing about, and perhaps had never seen ; and attempted to solve the problem of common employment, first, by making an employer liable for the acts of an employee engaged in an occupation entirely dissimilar to that of the person injured ; afterwards, by allowing all the circumstances of the employ- ment to be submitted to a jury, who should decide whether, upon consideration of all the facts, the relation between the fellow-employees was so distinct that one ought not to be compelled to suffer for the negligence of the other. The English and American courts had, however, gone so far in the direction of making common employment inclnde every man who worked for a common employer, that when in 1868 the case of Wilson v. Merry,* on appeal from the Scotch courts, came before the House of Lords, the distinc- tions which had been drawn in Scotland were overruled. And when again the same question came before the courts of New York, Judge Strong, in the case of Sherman v. The Syracuse & Rochester Railroad,! declined to make any dis- tinction, principally for the reason that it would be difficult to draw the line, and say when the occupations were so simi- lar that the employer should not be liable. This, were it the only reason given, would be equivalent to a refusal to do justice in a court of justice, because of the difficulty of mak- ing an attempt. * L. R., 1 Scotch Appeals, 326. 1 17 N. Y. 153-156. 62 STATISTICS OF LABOR. The hardship of this rule will be seen when the severity of its application is realized ; when it is remembered, that it includes a carpenter building a shed, and the engineer whose negligence kills him ; a weaver, and the engineer who starts the factory machinery before the usual hour ; a hod-carrier, and a slater who, at work for a sub-contractor, drops a slate upon the former's head ; a factory girl, and an architect who, without sufficient professional skill, designs a factory build- ing that falls in ; a brakeman, and a switchman who sleeps at his post of duty; the baggage-master of one train, and the conductor of another, who disregards the company's time-table ; a laborer riding home from his day's v/ork, and the superintendent who carelessly causes a collision ; all the employees on a train, and the mechanical engineer in the company's employ, who makes the plans of a bridge which gives way, as in the recent horrible disaster at Ashtabula. VI. — Is there Need of Furllier Legislation to Protect Labor? It is further urged by the courts, in support of the rule laid down, that the employee is as free to choose his em- ployment as the employer to select his workman ; that, if he wishes, he can avoid a dangerous employment, or point out defects in machinery, or incompetency in fellow-work- men, as well as his employer can. It should not, however, be forgotten that the employee has no supervision or direc- tion over the work ; that he is usually hired and paid by the - day or month ; that employers, as a class, are chary of re- ceiving from their workmen suggestions as to how the work should be conducted, or complaints against fellow-workmen ; that workmen usually do not occupy the same position of independence as their employers ; and if, in the hurry of business, they are too much afraid of taking risks, or too nmch inclined to make complaints, they may receive, instead of encouriigement, an unceremonious dismissal. They are at best but sailors, so to speak, on the ship, whose duty it is to man the yards, furl the sails, scour the decks, as the captain orders ; who, it is said, usually prefers to keep the reckoning, take the longitude, and direct the ship's course himself. Business is not conducted by stump speeches and EMPLOYERS' LIABILITY. G3 electioneering, as caucuses are, nor controlled by ballots and majorities. The employment is usually solicited by the laborer. He, too ofteti, has little money in his purse, and often a large and hungry family to maintain. There are usually many more laborers than hirers of labor. If the laborer is too scrupulous as to the qualifications of his 4'mployer, some less particular man may get the place. Employers seldom stand on the corners of the streets with certificates of fitness in their hands. Poverty is a blind critic, as well as hard taskmaster. There is no risk it will shrink from incurring, no burden it will not assume. Poverty is the arch-enemy of safety. While Capital, with leisurely care, c;in select the channels through which it will run, the industries it will set in motion, the wheels it will turn, and the railroads it will operate, Poverty must labor when and wherever it can, often with one eye blind to dan- gers, and one shoulder bent beneath an unequal load. Although courts cannot interpose to lighten this burden, is not this a fitting opportunity for the legislature to inter- fere for the protection of lal)or? Is it not another occasion when the legislature ought to interpose, and lighten the heavier scale of justice by transferring the risk of personal injury from the scale of labor to that of capital? Would not this tend to raise the wages of persons engaged in dangerous employments, by compelling employers, upon whom would rest a heavier responsiljility, to be more careful in the selection and discharge of their workmen? Would it not, in railway travel especially, make the general public more secure by ensuring the employment of more trusty, because better paid, workmen? Should it be said that the employee can now oblige the employer to use due care in the selection of his workmen, by a suit for damages in case of neglect, the answer springs at once to the lips that this is at best a barren right, because in enforcing it it is practically almost impossible to prove that due care has not been exercised. This, like the other right to compel the employer to use due care in the selection of his materials, machinery and plant, is, both to the employees and the general public, because of the difficulty of proving his neglect to provide them, practically a worthless security. 64 STATISTICS OF LABOE. VIT. — Should a Contract of Liabiliti/ he Implied 9 The controlling reason given by the courts in support of the rule laid down, is that the law does not imply a contract of liability. This is a strictly legal reason, based, however, like each of the reasons previously considered, upon a presumption of fact. "yVhat is an implied contract ? It is a contract which, in the absence of an express contract between the parties, is implied by the courts. It is, in other words, a contract which, where the parlies have failed to express their mean- ing, the court puts into words for them. It is, however, always based upon a presumption of fact as to what their meaning was. By virtue of what right docs a court assume to put the contract into words? By virtue of considerations of public policy. By virtue of the assumed, but now undisputed right of the courts to say that public policy requires them to ex- press in w^ords what the parties themselves actually meant, or what they ought to have meant. For example, if the groL'cr sends to a customer's house, upon an order, a barrel of flour, considerations of public policy allow the courts to imply that the customer meant, or ought to have meant, when he gave the order, to pay a reasonable price for the flour. The words "public policy," in order to have any meaning, must mean the public policy of the State or country to which the court rendering the decree belongs. Of this right, Judge Shaw, in the opinion so often referred to, says: "In consider- ing the rights and obligations arising out of particular relations, it is competent for courts of justice to regard con- siderations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned. This is, in truth, the basis on which implied promises are raised, being duties legally inferred from a consideration of what is best adapted to promote the benefit of all persons concerned, under given circumstances." He illustrates this principle by the well-known instance of common carriers of merchandise, for whom the courts make an implied con- tract of liability, amounting to a warranty that merchandise EMPLOYERS' LIABILITY. 65 entrusted to them shall be safely delivered to the persons for whom it is intended ; by the case of inn-keepers, for whom the courts imply a contract of insurance against fire, and warranty that the baggage of their guests shall be kept from injury ; by the case of common carriers of passengers, for whom the courts imply a contract to render compensa- tion in damages to those passengers who may be injured through their negligence or the negligence of their agents. As soon as this principle — that courts, in the absence of an express contract, have a right to imply for the parties a contract in harmony with the public policy and general con- venience of the country — is taken into consideration, it at once occurs to any one that if, in the judgment of Lord Abin- ger, who in 1837 decided the tirst case upon this subject, the public policy of England had required the adoption of a dif- ferent rule from the one laid down, the first precedent would have been different, and employers wonkl have been held liable for injuries caused to their servants by the neglect of fellow-servants. It is likewise apparent, if the first case had been different, that when, shortly afterwards, the courts of South Carolina and the courts of Massachusetts were called upon to apply the rule to the liability of railroad cor- porations, they would have followed this precedent, had they not thought that the public policy of their respective States required the opposite rule. It is likewise apparent that when these latter judges, during the infant days of railroad and manufacturing enterprises, in the exercise of their discretion, adopted so severe a policy of protection, they might have mistaken the true policy of the country; apparent that they and their followers virtually became political economists, and laid down upon this subject the public policy of two great countries; and apparent that this rule is not in harmony with the usual policy which protects American capital against foreign competition, because it protects it at the expense of our own laborers. It is equally clear that they became makers of law rather than judicial interpreters. And not only is it clear that their opinions, which are judge- made law, may have been founded upon a wrong theory as to what was the true policy of the State or country, but it is also plain that what was thought by these judicial political GG STATISTICS OF LABOR. economists to be the true theory, may, iu the growth of years and knowledge, be judged of differently by legislatures of the present time, who certainly have as well acknowledged a riffht to legislate concerning the continuance or diseon- tinuance of the policy of protecting great monopolies at the expense of their employees ; and the English Parliament has seen fit to change the policy of England by adopting a new theory. How Large Employers Escape Liability. Every mMn is liable for his own torts and breaches of contract. This is elemental law. Eveiy man is liable for injury inflicted by personal negligence. If, while driving through the streets, he carelessly runs over some one, he is liable. If, while conducting a small manufacturing busi- ness, he injures one of his workmen by his personal negli- goiice, he is also liable. If, while running a small cotton factor}', which is under his own management and supervision, he carelessly, with his own hand, starts the engine before some workman, while cleaning the machinery iu obedience to his orders, has finished, he is liable fur the results of his personal negligence. But if, as l)usiness iucreases and more workmen are employed, he hires a superintendent to direct the work and oversee these men, he thereby escapes liability for personal injuries. The superintendent, it may be, works strictly under his orders, doing precisely what he is told to do. The superintendent is his agent, duly authorized and com- missioned. He works strictly within the scope of his acknowledged authority ; he never disobeys an order ; and all the details of the business are done strictly in harmony with the general authority conferred. He is, it may be, in every legal sense, the employer's other self. His hand is his employer's hand, his eye, the eye of his employer. His hand, his eye, his every act, are guided by a mind so much iu harmony with the desires and interests of his employer, that it may almost be called the employer's mind. We may go still fui'ther in our supposition : the superin- tendent may be even more expert and competent than his employer. He may, perhaps, have had a belter training, EMPLOYEES' LIABILITY. 67 a larger experience ; he may have loarned his trade in a better school, and better understand the secrets and difficul- ties of the business. If a mechanic, he may be a better mechanic. If a machinist, he may be more adept. If a manufacturer, he may be more skilful. If a railroad super- intendent, he may better understand the construction of locomotives, the control and management of trains. If a mining engineer or superintendent, he may know better than his employer how shafts are sunk, and coal or ore is mined. All this, however, makes no difference. The eye of the law is blind to all these advantages. The employer, by the very act of hiring an agent or superintendent, has relieved himself from such liability for iJersoiial injuries to his employees. He is still liable, as before, to third persons, to .all the outside world. If a stranger, a passer-by, a visitor, a passenger, is injured, he must make reparation. But the law, by a just or unjust exception, gives him liberty to escape damages from injuries to his employees, so long as they are caused by the negligent baud of a duly authorized agent. How Corporations Escape Liability. The same rule which excepts large employers of laborers, excepts also corporations. "With them it works with added force. A corporation is an incorporeal being, a creature of the law. It is an impersonality. It has neither birth nor parentage. It knows no father but the State. The State is only its foster-father. It does nothing of itself; does all its acts by the hands of agents. Like the fabled daughter of Jove, it is invisible, yet by its influence controls the acts and guides the hands perhaps of hundreds. But whatever is done for it by the hand of an agent, is, in the eye of the law, done by its own hand. It is responsible for the acts of its agents, as corporeal beings are. The maxim, Qui facitper alium facit per se, — " What you do by the hand of another you do by your own hand," — applies to corpora- tions as well as to persons. To this general rule there is, however, one exception. It is not liable for the acts of its agent when those acts cause personal injury to another 68 STATISTICS OF LABOR. agent. It is not liable for these acts, because both agents are fellow-employees of the corporation. The hardship of this exccpliou becomes more manifest when we remember that persons — almost any and every person, three or seven, according as the law requires — engaged in business may become a corporation by applying to the Secretary of State, and conforming to the simple requirements of the corporation act. By this process of incorporation persons are not changed or regenerated, but their legal liability becomes changed. As persons, they were liable for their personal negligence ; as a corporation, they are not persons, and therefoie not liable for their own negligence. Neither are they, as we have seen, liable for the negligence of their agents, when this negligence causes personal injury to fellow-agents. For any act of an em- ployee which causes personal injury to another employee, is an act done by a person who is a fellow-emp!o3'ee of the person receiving the injury. Corporations thus escape all such liabilities.* When it is realized how much of the business of the world is done by corporations, how many manufacturing and railroad corporations there are, how extensive are their operations, and how many thousands of workmen they employ, the importance of this exemption from liability will be better appreciated. Accidents upon Eaileoads. " In the providence of God there are no accidents," said one of Massachusetts' most honored sons, in commencinff his eulogy on Abraham Lincoln. This truth, so tersely expressed, applies with equal force to persons killed upon our railroads. No man dies without a cause, though the cause and the causer may remain alike unknown. Every death upon a railroad, like every death by violence, is the result of somebody's negligence or wilfulness. How many persons in this Commonwealth are annually killed or injured through some one's negligence, can never be knoWn. It is probable that from ninety-five to ninety-eight per cent, of them are either the proximate or remote cause of their own injuries. They are the victims of either their sole or their • See Howells v. Laudore, L. R. 10 Q. B. 62 ; and "Wilson v. Merry, before cited. EMPLOYERS' LIABILITY. 69 contributory negligence ; and, in either event, the law ex- cludes them from recovering damages. A good proof of this estimate is furnished by the rccr)rd3 of the courts as compared with the number of accidents. In how few of the hundreds of instances where persons are Ivillcd or injured are damages recovered ! The railroad is the most fruitful fluid of violent deaths. According to the E tilroad C )mraissioners' Rjp )rt for 1882, there were 9,651 train accidents in the United States from 1873 to 1881, inclusive ; 1 , 117 of them causing one or more deaths; 1,676 causing one or more injuries. There were 2,372 persons itilled, and 9,387 persons injured. During the year ending September 30, 1881, there were in the United States 1,481 train accidents, as reported in " The Ifailroad Gazette," by which 438 persons were killed, and 1,644 persons injured. By the Report of the English Board of Trade, the numlier of train accidents and collisions on the railroads of Great Britain, with their results, is as follows* : — Total number killed, . ... ... 1,135 Total number injured, .... 3,9a9 Passengers killed, . . . . . . 142 Passengers injured-, 1,611: Persons killed on railroad i>i-eMises, not resulting from the movement of trains, 45 Persons injured on railroad promises, not resulting from the movement of trains, .... ... 2,733 Employees killed (inelufling employees of contractors), . . 546 Employees injured (including employees of contractors), . 2,080 Of 5,084 persons killed or injured in England by the movement of trains, in nine years, 2,620 were employees, which is over fifty per cent. During the year ending Soptembar '30, 1881, according to Table C of the Appendix to said reportf , there were, in this Commonwealth : — Total number killed, . . 184 Total number injured, . . 231 Passengers killed or injured, . . . .42 Employees killed or injured, . . . 200 Trespassers killed or injured, . 126 * See Mass. Riiilroad Commissi.)ncrs' Report, 1882, pp. 21, 22. t Ibul, p. 62. 70 STATISTICS OF LABOR. At highway crossings and stations, killed or injured. . . 47 Passengers liilled or injured by causes beyond their own con- trol, 11 Passengers Ijilled or injured through their own carelessness, . 31 Employees killed or injured, train men, V)7 Other employees killed or injured, lio Tot.il employees killed or injured, 200 Of 415 persons killed or injured within the year, 200 (about 50 per tent) were employees, 167 of them being employed in the management of trains. These facts are furnished to the State by the various railroads themselves. There is no record published of the causes of accidents to employees ; but it is probable that froni 75 to 95 per cent of the 200 were injured by their own contributory negligence. It will thus be seen that the eifect of a change iu existing conmion law will not be so widespread and injurious to the interests of the railroad corporations of the Commonwealth as has sometimes boon apprehended. It is difficult to tell with accuracy the causes of these injuries to employees. No record of causes is published by the Railroad Conunissionors, thoilgh it is highly probable that the railroad companies keep, for their own protection in case a suit is brought, a record of each injury, its cause, and the circumstances connected with it. This has been the custom of the English companies. James Grierson, the General Manager of the Great Western Railway, testified iu 1877 before a Parliamentary commiltee, " that every accident, even down to the jjinching of a man's thumb, was kept a record of i)y the Great Western Board for many years before an act was passed requiring the accidents to be reported to the Board of Trade ; that is, I mean, accidents to servants." As to the proportion of accidents caused by the contribu- tory negligence of employees, Mr. George Finlay, Traffic Managcfof the London and North Western Railway, testified before the same committee as follows : " There were b3 who lost their lives; and, of those 83, 77 men were killed through their own want of caution, and three deaths resulted from the acts of their fellow-servants, and three from other causes beyond their control; so that in 77 cases the men were contributory, by their own negligence, to their EMPLOYEES' LIABILITY. 71 death, which unfortuniitely occurreJ, and in six other cases they were not contributory." When asked if the same proportion of employees were injured through their contributory negligence, he was unable to answer the question accurately from statistics which he had brought with him. Out ol 83 employees killed, it appears that three were killed by the negligence of fellow-employees, which is 3^^ per cent, the other df)^^ per cent being killed by their own contributory negligence. These data are meagre, but are all that have been obtained. According to an investigation made by Cornelius Walford, a well-known English stitistici;in, and published in the Jour- nal of the London Statistical Society, vol. XLIV., part iii., September, 1881, there are, per annum, in Great Britain and IreLmd, 12,000 deaths by accident and violence, — about one in every thousand (p. 512) ; and as, according to the tables of the accident insurance companies, there are 99 non-fatal accidents to one fatid, he estimates the number of injuries annually occurring in Great Britain and Ireland at 1,200,000. The ratio of fatal to non-fatal accidents in the dangerous employments he estimates as three to one hundred (p. 513), because the severity of the injury increases the number of fatal accidents. Mr. Neison, in his report in the January number, 1880, of the same journal, estimates the ratio of fatal to non-fatal accidents upon railways to be two and one- half per thon.-and on the passenger traffic lines, and three and one-half per thousand on the lines doing likewise a heavy goods and freight traffic (p. 51) ; and from the actual experi- ence of the Miners' Permanent Relief Fund he estimates the ratio of miners temporarily disabled at 140 to 190 per thou- sand, and fatally injured at two and three-tenths to three and six-tenths per thousand ; in case of railway employees, 84 per thousand temporarily disabled, and three per thou- sand fatally injured (p. 502), Are Complete Returns of Injuries made to the Rail- road Commissioners? It is a matter of State pride that our railroads show as low an average of deaths and iiijuiios as the railroads of other 72 STATISTICS OF LABOR. States and countries. "Without intending to impeach the accuracy of the reports of injuries njade by the various i ail- roads of the State, it is worthy of remark that the ratio of the number of injuries to the number of deaths is very small. The number of deaths is, without doubt, correctly re- ported. Any one desirous of verifying the returns could etisily do so by examining the reports of coroners and medi- cal examiners ; and perhaps the district attorneys, to whom these officers report each death, keep a record sufficiently complete for this information. Why is it that so many are killed, while comparatively so few are injured? In 1882, for instance, 184 were killed, and only 231 other persons were injured. In 1881, 146 were killed, and only 200 were injured. A railroad train is, to be sure, a fatal instrument of destruction ; but why should it be more fatal here than in other States and countries? During the last nine years, 1,266 were killed, and only 1,478 were reported as injured; while during the same years, in the United States, according to the "Railroad Gazette," 2,372 persons were killed, and 9,387 injured, — almost three persons injured for every one killed. It likewise appears by the Railroad Commissioners' Report for 1882, that the total number killed on the rail- roads of Great Britain in 1880 was 1,135, and the total number injured was 3,'J59, — more than three persons in- jured to one who was killed. In 1875 there were, according to the reports of the English Board of Ti'ade, 765 killed, and 3,618 injured, — about five injured to one killed, — on the London and North Western Railway. In 1876, 83 were killed, and 1,898 injured, in the workshops and working the trains, — nearly 23 injured to one killed. There is, no doubt, a difference of opinion as to what constitutes an injury. One corporation may think that a person is not injured unless he is so severely hurt as to lie obliged to lose an arm or a leg,- or is untitted for work for the rest of his life. Another may say that the pinching of a thumb so as t') lose the nail is an injury. And if each corpo- ration were to be its own judge as to Avhat injuries to report, it is probable that only severe injuries would be reported. The accuracy and completeness of reports of the English railways to the Board of Trade were called in question EMPLOYERS' LIABILITY. 73 several years ago, and Mr. Edwin Paillips mvde an exami- nation and report upon a part of the subject. In this con- nection it may bo well to give a summary of the results which he obtained. He says that a thousand men were killed by the railroads of Great Bntiiin in 1872, while only 590 lost their lives from shipwrecks and other casualties along the coasts. He found that the Lancashire and York- i^hire Company, which had made a return of 39 eaiployees killed, and 73 injured more or less seriously, during the year 1872, had actually killed 54, and injured 1,367, — more than 25 injured to one who was killed. Ho says further: " The Lancashire and Yorkshire Company have close upon 14,000 men in their employ, but full 4,000 of this number may be deducted for clerks and other officials, who never have to incur danger ; so that, taking the number of out-door servants at 10,000, it will be seen that there was one killed to every 185 employed, and one injured to every seven employed. Reckoning the number of railway men on all the lines in the kingdom at 200,000, it may be safely inferred that 1,080 men were killed in 1872, instead of 632, as given in the official returns ; and 27,340 injured, instead of 1,395. So that nearly as many men were injured on the particular line referred to, as the Board of Trade returns give for the whole kingdom. It may be added (as I pointed out in my report published in the ' Times,' December 20th, 1873) that the result of some investigations conducted by a committee of the Edinburgh Chamber of Commerce strik- ingly bear out the correctness of my figures. And no per- son is included among those injured whose injury was not of so serious a nature as to incapacitate the sufferer from follow- ing his usual employment for several days." * Mr. Cornelius Walford, in an article upon "the number of deaths from accidents," etc., in the September (1881) number of the "London Statistical Journal," estimates the ratio of fatal to non-fatal accidents in dangerous employments as three to 100, basing his estimate upon facts gathered from the tables of accident insurance companies. The inference from these facts is, that accidents upon our railroads are more fatal than upon railroads generally * Fortuiglitly Review, Marcli, i874. 74 STATISTICS OF LABOR. throughout the United States and Groat Britain ; or else that ail injuries so serious as to incapacitate the sufTerer for worls for several days are not reported. PXIOBABLE AmOUXT OF DAMAGES FROM A ChANGE IN THE Law. As bearing upon the question of the probable compensa- tion paid annually in damages by railroads, for personal injuries caused to passengers, an elaborate calculation made by Mr. Gait, an English statistician, and published in an earlier number of the " Fortnightly Review," shows that the English railways expend for this cause 2|d. in every sovereign of their total expenditures, or abcjut one per cent of their total disbursements. The ratio of the number of passengers killed without their contributory negligence, in the United King- dom, to the number of passenger trips, was : — In 1877, one in 50,144,876. In 1876, one in 14,165,455. In 187-1, one in 5,556,284. Of the 2,500,000 persons employed in the factories and workshops of Great Britain during the year ending with the 3Ist of October, 1879, 5,333 received fatal or other injuries, or only about one in every 468 persons emplo^'ed. In Massachusetts, during the year 1882, the ratio of per- sons killed, without their contributory negligence, to the number of " passenger trips," including the trips of season- ticket holders, was one in 20,927,034; and the ratio of per- sons injured was one in 667,300. According to the testi- mony of Mr. Evans, the General Secretary of the Amalga- mated Society of Railway Servants of Great Britain, of 4,383 persons killed or injured, no instance came to the knowledge of the society where damages were recovered, although 39 of them were killed, and 514 injured, according to the companies' reports, from causes beyond their own control . It is thus seen that however many persons are killed or injured, whether passengers or employees, a very small pro- portion of either could recover damages ; and if one per cent of the total expenditures covers all the money paid out in the form of damages to passengers, a change in the law EMPLOYERS' LIABILITY. 75 as to the liability to employees killed or iiijured, wlio are less in number, can work, it would seem, no great hardship. Causes of Injuries to Railway Servants. The employees, in almost every instance, are the causers of their own injuries. Can nothing be done to make them more careful ? Can no additional precautions be taken to make their employment less dangerous? Two hundred were killed or injured in Massachusetts during the last year. The railroad corporations are under a heavy legal responsibility to protect passengers. They are, in a less degree, respon- sible for the protection of their employees. Do they tike sufficient precautions to protect them ? If placed under a heavier legal responsibility, would they do more? These are questions which the employees of the British railways have been considering for years. They have addressed peti- tions and remonstrances to their employers. They have organized trades unions for mutual protection. They have organized mutual insurance companies. They have peti- tioned Parliament, setting forth their giievances, and asking lor additional legal protection. Ten thousand railway ser- vants signed a memorial, whiih was presented to the Royal Commission when this subject was under consideration. In this memorial they enumerated specifically, as follows, six of the remote causes of accidents to employees: 1st, Exces- sive hours of labor ; 2d, Non-enforcement of certain of the companies' rules, ostensibly made for the protection of the men; 3d, The non-adoption of the most approved appli- ances conducive to safety in the working of railways: 4th, The want of proper accommodation for the working of freight and traffic ; 5th, The employment of inefficient per- sons for the performance of responsible duties; 6th, The insufficient number of men employed. In 1876 Frederick W. Evans was the General Secretary of the Amalgamated Society of Railway Servants of Great Britain. He had had a large experience, was familiar with this subject in its breadth as well as in details, and testified before a Parliamentary committee as follows : — " If you will permit me, I will make a brief statement as to the views whicli I entertain upon the subject; and as nearly as possible I will 76 STATISTICS OF LABOR. confine my remarks on the subject, in so far as it affects railway ser- vants. Railway servants are, more tlian any other class, interested in placing on their employers such liabilities as will ensure every precau- tion being taken for their safety. They are the most interested, because a larger percentage of them are victims of accidents, which, to a very great degree, are of a preventable nature. By the returns which the companies supply to the Board of Trade, it appears that in 1875 alone no less than 4,383 railway servants were killed or injured by accidents on railways. Of this number the companies assert that only 39 were killed, and 514 injured, from causes beyond their own control ; while 7i6 were killed, and 3,104 were injured, from their own misconduct or want of caution. These returns are by the companies. But I look upon the companies as interested parties, and, therefore, not impartial in making such returns. * * * Taking the companies' own figures in the 1875 return as being accurate, there would be even then 653 servants injured by no fault of their own, and to whom, were they not servants, it is probable that the companies would be compelled by law to pay com- pensation. But, as the law at present (as I understand it) stands, rail- way servants cannot claim any compensation whatever for the loss they suffer by the acts of others. The companies, at present, are in no way responsible for the safety of their servants. Every act done for a cor- porate body is the act of a servant; and, whatever the position of that servant to another, any act of his, if injurious to his inferior, the law holds to be the act of a fellow-servant. They are in a common employ- ment. It so happens that, as the law now stands, the life of a railway servant is of less value than the life of a horse ; inasmuch as, however gross the mismanagement which produces the death of, or injury to, a servant, there is n6 responsibility whatever upon the company ; whereas, if a horse is injured or killed, it costs the company a certain amount of money in order to replace the animal. It is in consequence of this irre- sponsibility that companies do not go to any great expense in removing sources of danger to their servants. * * » I bold it to be the duty of the legislature, as the companies cannot act for themselves, but must depute their authority to others, to make the companies responsible for loss sustained by servants through the act of those who wield authority in the companies' names. * * * In shunting [switching] operations, about one in every twenty men engaged are killed or injured in the year. This arises, in a great measure, from a practice termed fly- shunting. " In the companies' rules this practice is generally forbidden ; but, while forbidden in the rules, it is nearly everywhere practised with the consent of the companies' officers ; and, with the limited accommodation which the railway companies have for working their goods traffic, I question whether the traffic could be carried on without resort to this practice. Where the rules forbade a practice, and it was carried on with the sanction of the companies' officers, I would hold the companies responsible for all accidents to their servants arising from the practice. There are in the railway service a number of officers of various grades, who each to those servants under them represent the employer, and EMPLOYERS' LIABILITY. 77 exercise, so far as snch servants are concerned, the authority which an employer has over those employed. Tims, lo the ordinary servant on a railway, the manager, superintendent, station master, inspector and foreman, represent the interests and the authority of the employer, or the company. In any case where the actions of such persons in authority, or the actions of others who carry out their instructions, in- flict injury to a servant, I hold that, as the officer stands in the position of employer, the company should be liable for loss occasioned by his neglect, indiscretion, or want of judgment. It also happens that one class of servants are under the direction of another class, and are bound to obey their instructions. Thus, the driver is bound to obey the direc- tions given him by the signalman. Should the driver refuse or neglect to do so, and a fatal accident occurred, he would be deemed guilty of manslaughter; and the companies invariably punish any disobedience by drivers to the directions of signalmen. In this case also, the signal- man represents the authority of the employer ; and if by his wrong direction a driver, or fireman, or guard were injured, I hold that the company should be liable. It has been asserted that men are paid higher wages in proportion to the risk they run. Nothing could be more inaccurate. In dangerous occupations on railways the risk is greatest when the experience is least, and when the rates of wages are lowest. Thus, the risk to a man just started at from 20s. to 22s. per week as a shunter or brakesman is greater than when, by length of service, he has attained to experience and the maximum wage of 2.qs. or 30s. respectively. Again, the highest wages are not paid to the class of ser- varts who in the performance of duty run the greatest risk. Thus the shunter, whose duties are by far the most dangerous, receives less than the driver, than the goods guard, than the passenger guard, and sortie- times than the signalman. The highest wages are given to those classes whose experience is gained by long service, and whose duties are responsible. It is tlie interest of the companies to induce these men, by offers of higher w.ages, to remain in the service. If they became migra- tory, the work of the lines would be carried on with greater risk, incon- venience, and loss to the proprietors. I am, therefore, of opinion that in the consideration of the liability of railway companies to their ser- vants for injuries, it cannot be maintained that higher wages are paid to cover greater risks. The exemption of the employer from liability for claims to compensation for injuries to one servant, caused by the neglect of another servant, known as the common employment doctrine, bears most unjustly on railway servants. Owing to the different natures of their occupations, there is nothing common in the employment of many railway servants, unless it be that the same shareholders ai"e their em- ployers. There is no real community of employment between a guard and a plate-layer, an engine-driver and a clerk, a joiner and a fireman ; yet in these instances the law-courts have ruled to the contrary. And, as between officers and servants, their real relations are those of em- ployer and employed. Thousands of servants never see each other, live miles from each other, are in totally distinct departments, and under different officers. Servants have not the choice of their fellows, 78 STATISTICS OF LABOR. are ignorant of each other's qualifications, and any attempt to interfere with the appointments of the offloials would be viewed by them as an insolence. 1 may st:ite that a little while ago an appointment was made of a driver of some four months' qualification, to the fastest train running on a certain railway. At a meeting of the men I was requested to lay before the chairman this fact ; but the chairman has neither had the courtesy to notice my letter, nor has there been any alteration whatever in the state of things. The railway companies generally refuse to recog- nize any combination of their servants ; and therefore the servant would have really no influence in the appointment of other servants by the companies. Nor can the servants judge of the state of the machinery and appliances, other than that immediately under their own control Any refusal to obey orders may result in an immediate arrest by any officer under the Railway Act of 18-12, which provides special pro- tection to the companies against any neglect or wilful disobedience of their servants. These ai-e, to my mind, reasons why the companies should be legally responsible to one servant for the injury done him by another. The whole question presents itself to me in this form : Loss and injury ai-e inflicted on a workman by the carelessness or negligence of a person who has been selected specially by an employer, who acts under the employer's instructions, and who is free from the exercise of any control by the injured workman. The employer is liable for any damage which such a person might, through incompetence or negligence, do to any person not in the employ, or to any property entrusted to the employer ; and I am unable to see why the liability should be removed, when the damage is done to an employee through no fault of his own. The servant cannot be expected to undertake a portion of the employer's risk, when he is debarred from sharing in the profits. The servant is a contractor with the company, as is a railway passenger or freighter ; and if he faithfully performs his contract, the law should protect him from loss inflicted by other and injudicious or unfortunate contracts which his employer may make with others for the employee's profit and con- venience. There can be little doubt that if such was the case, railway companies would more carefully select their servants, and place them under more careful and efficient supervision, and suppress those dangei'- ous methods of doing work now everywhere practised, and which lead to the fearful slaughter of railway servants. It has been urged that if a measure providing compensation for injuries to workmen became law, they would be more careless, and incur unnecessary risk. I am not of this opinion. There are several cogent reasons against such a view. First, for them to do so would in itself invalidate any claim they might make to compensation from their employer. Secondly, ^if the safety of others was concerned, their conduct would lead, in the railway service, to dismissal from the service, and possibly to imprisonment. Thirdly, it is against human nature to voluntarily incur pain and deformity, and sacrifice family and all natural enjoyments, especially as in this casei when the expected recompense is an uncertainty. Fourthly, such an argument would be equally effective if urged against compensation for injuries to passengers; and, if it has any weight, railway acci- dents to the public would be more frequent than they are." EMPLOYERS' LIABILITY. 79 III another part of his testimony he says, in answer to a question as to the probable remote causes of the death or injury of the 4,383 raih-oad employees reported killed, and the 3,104 reported to the Board of Trade as injured in 1875 : " In my opinion, if the proper causes were returned in about one-half of those cases, it would be found that the want of accommodation, and the other causL's mentioned in the me- morial, would have contributed to the accidents." (Parlia- mentary Report of 1876. Ques. 1027.) Causes of Accidents upon Railroads in Massa- chusetts. The general causes of accidents already enumerated are : — 1st. Excessive hours of labor. 2d. The non-enforcement of certain of the companies' rules, ostensibly made for the protection of the men. 3d. The non-adoption of the most approved appliances conducive to safety in the working of railways. 4 th. "Want of proper accommodation for the working of freight and passenger traffic. 5th. The emplo3'ment of inefficient persons for the per- formance of responsible duties. 6th. The insufficient number of men employed. I. In connection with or in addition to these there are various remote causes of more or less importance. Among them. First, U the use of intoxicating liquors. Although the rules of all the covpoi'ations proscribe their use, malt liquors, lager beer and ale, are sold at most of the station restaurants. Second. The favoritis^m shown in the appointment of train hands. Men who are unfit for the responsibility with which they are entiusted are not infrequently given or retained in positions upon the request of influential directors or stock- holders. Their fellow-workmen hesitate to incur the odium of making complaints ; and sometimes, especially while there is a pressure of business, incompetent men retain their positions for some time. Third. The use of the telegraph or block system. With- out expressing any opinion as to the comparative merits of this system, it is without doubt sometimes the cause of an 80 STATISTICS OF LABOR. accident. In the hurry of business, while the train is -vraiting at a station for the order to go on, the conductor sometimes signs, for the engineer, a receipt for the despatch, or the de- spatch is misscnt or misunderstood, and in consequence a collision occurs. In a recent case in New York, where a fireman was killed because the conductor had signed the order for the engineer, who, although he had not received it, had started his train, no damages could be recovered, because they were all fellow-servants. Fourth. The neglect of the statute regulation requiring one man for every two passenger cars. Since the adop- tion of the air and vacuum brakes, this requirement, de- signed partly for the protection of passengers while getting on and off the cars, is frequently violated; and, partly be- cause no similar law exists in relation to freight trains, trains of from fifty to eighty cars are sometimes sent out with only four brakeraen. II. Among or in addition to the most approved appliances conducive to safety which have not been adopted, may be mentioned. First, the Miller platform and air or vacuum brakes, which, though generally, are not universally used on passenger cars, and have never been in use upon freight cars. Second. Faults in construction, sharp and reverse curves, sags in the road-bed, which cause trains to break apart or lurch so suddenly as to throw the men off their balance; truss bridges so narrow that men hanging off the steps, on the look-out, are killed ; overhead bridges, so low that brakemen are frequently swept off the tops of freight trains. There are some bridges that have killed their half-dozen men. Third. The insufBcient lighting of stations, and the lack of proper platforms and crossings safely arranged and guarded. a Fourth. Insufficient car inspection, which usually ex- tends to the running gear, the wheels and brakes, but seldom includes the body of the cars, especially freight cars, or the ladders and handles. Insufficiently fastened or rotten ladder-rounds are not infrequently the cause of a brakcman's falling between the wheels. EMPLOYERS' LIABILITY. 81 Fifth. The variation in the height of cars, over the top$ of which brakemcn are obliged to fiufl their way, and ^ener- aily at night. 8ixth. The lack of a safe railing around the tops of freight cars, a simple and effective contrivance for saving the lives of men, which hns been partially adopted by some roads. Seventh. The awkward, old-fashioned method of shack- ling cars, which obliges the men to go between them. III. Among needs of proper accommodation for the work- ing of freight and passenger traffic are, First, the need on some of our roads of a double track, or sufficient side tracks. As to this need of one of our railroads, its general manager says : " There has been almost constant blockade of freight- movement lately on the divisions referred to, arising from insufficiency of side tracks to accommodate the vastly in- creased business. Until within a short time, a half-dozen trains would be found on a division of road with side tracks which would hold but a single train ; and, in consequence, the passing and passage of trains was necessarily a slow process." On this road, during the piist year especially, a shameful, wicked loss of life has occurred from this cause. Second. The lack, at local freight stations, of sufficient sidings, freight-houses and platforms, which necessitates the breaking up of the train into parts, when too long to be accommodated, and the shunting-off of these various parts to different tracks in the yard. This process of " tly-shnnt- ing" is the most dangerous operation in the working of freight trains. Third. The sudden adoption of new appliances, before the train men have become sufficiently familiar with their use. Fourth. The sudden adoption of new methods of busi- ness. A collision costing one road sixty thousand dollars, and injuring the fireman severely, was caused, say the Eail- road Commissioners, " by a general misunderstanding of a telegraphic order," addressed to the freight conductor for information, and understoodas an order to go ahead. Fifth. The tendency, in using the telegraph, to make the orders so terse as not always to be cxp icit. Orders 82 STATISTICS OF LABOR. written by an expert operator are for this reason misunder- stood by a freight conductor or engineer less expert in this direction. IV. The employment of inefficient persons for the per- formance of responsible duties is a not infrequent cause of accident. First. The management are sometimes deceived by ap- plicants for positions who pretend to be skilled train hands. That economy which discharges employees in dull times, expecting to be able to find competent train men when pros- perous times return, is sometimes a mistaken economy. Second. Because of frequent changes in the sets of train hands, caused by discharges and new appointments, in consequence of which train men do not become familiar with each other and each other's ways and habits of doing business. Third, Because of the insufficient wages paid on some lines, where, it is said, there are station agents, for in- stance, who receive only ten dollars per month. Rail- roads sometimes employ inefficient persons, men who have been injured on their road, in order to avoid the possibility of a claim for damages, retaining them until the claim has been settled or outlawed. Instead of paying, they pension them, and take the risk of accidents. V. "Whenever an insufficient number of men for the proper management of trains is employed, as a natural con- sequence, they are obliged to work an excessive number of hours. It is when the employee is worn out with overwork that there is the greatest danger lest, by some lapse of ordi- nary care or attention, an accident may occur. When an insufficient number are employed, there is even greater danger that, in the hurry of making connections, with the extraordinary strain imposed, some slip may occur or some- thing be neglected. An employee on one of the divisions of the London and North Western Railway says, in a letter already published : " I have before me a report from Leeds of one man having worked 13l| hours in a week; also a case of an engine-driver working 106 hours in one week, lately ; and 40 or 50 hours in two journeys, with only a few hours' rest, is a common occurrence. A goods guard EMPLOYERS' LIABILITY. 83 told me this morning tiaut he had lately worked 32^ hours without rest, and he received the sum of 12s. 6d., although his employers, in 1872, granted as a concession that ten hours should constitute a day, and afterwards the men should receive overtime at the rate of eight hours per day." The following are actual cases of overwork and insuffi- ciency of help, which have recently occurred in this State ; and, if an accident had occurred, the excuse, if made, that it happened under a pressure of business, would have been no justification for the loss of life. First. A train due at 6:20 p.m. arrives on time at A . Passengers and baggage must be discharged, and the train hacked four hundred feet, in order to clear the main line for an express passenger train which passes at 6.24, four minutes later. During this time both the inward and out- ward tracks must also be flagged, which means that one man must be sent forward, and another back, each the distance of fifteen telegr^ijjh poles ; there are only the con- ductor and two brakemen to attend to the flagginji and the Co O switches. Second. On one road a section gang, consisting of a foreman and three assistants, is obliged to keep propel ly graded, and in proper condition, the same length of road to which a section gang of six persons is usually appor- tioned on other roads. Third. The neglect to provide switchmen has caused many accidents, because the brakemen on the train neg- lected to leave the switch as it should have been left, and the train which came afterwards was thrown off the track, or on to a side track, where another train was waiting. Had the brakeman even thought of his mistake, after his train had gone on, it would have been almost impossible to rectify it, although a switchmau might have done it. Fourth. An engineer went to work Friday at 5.30 a.m., and remained on duty till Saturday at 12 15 a.m. On the same day at 5 30 a.m., about five hours afterward, he went on duty again, and worked till 7.30 p.m., when his day's work should properly have ended ; l)ut he received orders to continue work, and did so for 24 hours longer, until Sunday at 7.30 P.M., being on duty 62 hours, ;\ith the exception of five hours and fifteen minutes. 84 STATISTICS OF LABOR. Fifth. Anolher engineer worked the same number of honrd a-> the preoudiiig one : but, instead of being relieved from duty iit 7.30 p.m. Siind.iy, he continued on duty until 5.30 A.M. Monday, tiuis making 74 hours of almost continu- ous work under a heavy rcsponsil)ility, without rest or inter- mission, except for live hours and a quarter. Sixth. The following is a case of overwork by a full set of train men, consisting of- conductor, two brakemen, fire- man, and engineer. Work begins at 5.30 a.m. Woik ends, every second day, at 7.30 p.m., and on every alter- nate trip at midnight ; is continuous all day ; every alternate Sunday the same men are on duty from i) a.m. till 11 p.m., and while on the road are obliged to tend the switches. During the first trip they are on the rond 38 hours. During the alternate ti ips they ure on the road 43| hours ; and on every other Sunday they are on duty for 14 hours. During the day they travel about a hundred miles, carrying about a thousand passengers, and making a hundred and fifty station stops. In addition, the engineer must keep an accurate account, and make returns of various matters relat- iiitj to the amount of coal used, and the workiu": of his locomotive; and the conductor must make out seven dillcr- ent reports on blanks calling for minute details, with du[)li- catcs of live of them. iSevenllt. Another set of train men work every day from (i a.m. to 8 P.M., fourteen hours; and from G a.m. till 12 P.M., eighteen hours, on alternate days; and likewise work alternate Sundays. Eighth. A freight train gang left the starting point at 11.10 a.m., and returned at 7.10 the next morning, at the end of twenty hours. At 8 a.m., within an hour of the time of their arrival, they took out another train, returning at 4.30 p.m., at the end of eight hours and a half. Three hours after their arrival, at 7.30 p.m., they began work again, returning at 10.30 a m. the next day, at the end of fifteen hours, having been on duty 43^ hours, with the exception of fifty minutes' intermission at one time, and three hours at another. " Of course," says one of the brakemen, " I went out with my own train that same night." It was on this road that one of the brakemen, overworked EMPLOYERS' LIABILITY. 85 on a ficiglit train, who hiid been sent out to flag another train, foil asleep at bis post, and was run over and killed by the train he was sent out to flag. Ninth. The following case is given as an illustration of how train men are prevented, while on their trips, from gel- ting sleep : A train left A — for a trip to Boston, where nearly all the train men live, starting Thursday night on time, and not arriving, in consequence of various delays, allowing no opportunity for sleep, until 5 am. Saturdiiy, having been one day and two nights on the road. Tenth. A train hand, who had worked from 9 a.m. un- til 11.15 p M. on Sunday, continuously, \i\ hours, and during the rest of the week 97| hours, — a daily average of in^ hours, — declined to work on the subsequent Siniday, because he needed rest, and was discharged. An engineer, who duiiiig the week had been on duty the same nimibcr of hours, was asked to volunteer to work on this Sunday ; and, upon his declining, and upon being told that such tifcommodating men were to be had, he consented to work. Eleventh. The plan recently in use on one of our roads, of paying men by the trip, instead of by the day, has been a frequent cause of overwork, by making it possible, in some cases, for train men to do thirty-six days' work in a month. One reason fur the increase of labor imposed upon con- ductors and engineers is, that they are obliged to make out so many reports with minute f-pecitic details. It is often said that the wages of a railroad employee are higher in proportion to the cxtia risk which he assumes. As has been already said, the facts do not warrant the as- sertion. In reply to some recent criticisms upon the low wages paid, the management of one of our railroads say, that while heretofore a conductor has been paid |2.(55 per day, and a brakeman $1.75 per day, by a plan just adopted, the pay of a conductor has been increased to $2.90 per day, and that of a biakemau to $1.90 and $1.80 ; which is declared to be a higher rate of wages than that paid by other railroads. Freight-handlers, who work in the freight-house, receive $1.50 per day ; car-knockers, or yarJ-repairers, who are exposed to no danger from 86 STATISTICS OF LABOR. the running of trains, receive $1.75 per day; a black- smith's helper receives |2.00 ; a common ial)f)rer or a giavel- shovelier gets $1.50 per day, with regular hours for work, and an hour at noon for dinner. From these figures, and a comparison Avilh the wages ordinarily paid to day-laboreis, gardeners, and ordinary mechanics, it will be seen that rail- way emploj'ees are paid, like other men, for the hard work they do, with no extra compensation for the risks incurred. In case one of them is killed, most of the railroads pay the expenses of his burial, unless they are otherwise providid for. In case one of them is injured, the companies usually furnish him with surgical or medical attend- ance, and provide for his care in some hosi)ital until he can resume work, or until he recovers, if this is within two or three mouths; but this is done only ou condition that ho waives his claim against them for damiijies. Should he have received his injury in consequence of some act of courage, he generally receives some more liberal provision. In the opinion of experienced corporation counsel, of railway em- ployees injured in this State not more than five per cent ever prosecute their claims by suit, and not more than one per cent, one-filth of these, successfully. Railway Insurance. One method of relieving tlie condition of employees who have sufi"ered injuries, and the families of those who liave been killed, which for several years past has been practised in England, nnd which in some ways is being practised in America, is Accident Insurance. The number of persons, passengers and others, who are annually killed or injured on the railways of Great Britain, and the number of pci'sons annually travelling by rail and ex- posing themselves to danger, attracted the attention of per- sons familiar with the law of chances which governs insurance and the management of its general business. While passen- gers, travelling occasionally, were willing to incur the ex- pense of premiums, employees, as a class, were too poor to pay the large premiums which their constantly dangerous mploj'mcnt required. For their benefit another expedient was resorted to, more espociuUy after the famous Ilcnly dis- EMPLOYERS' LIABILITY. 87 aster. It was the organization amoug themselves, with the co-operation of- some of the railroad corporations and pro- prietors of collieries, of mutual cooperative and provident societies. The olijcct of these societies was to provide something for the employees or their families in case of death, injury, sick- ness, superannuation, or inability to work from any acciden- tal cause. Railroad employees and miners were generally too improvident to be willing to pay a quarterly or monthly stipend from their wages for the privilege of receiving an allowance upon the happening of so uncertain an event ; and it was necessary that the various corporations and proprietors of mines should be induced to make the deduction of such an allowance compulsory upon those already in their service, or a pre-requisite to admission of others into their employ- ment. As the funds collected must be held and invested, and paid over to the persons entitled to them in such amounts as had beeu prescribed, and the general duties incident to such a business must be performed by some persons in whom all the members had confidence, it was necessary for the associations to have paid officers. As the amounts which the employees were willing to have deducted each month or week as premiums from their wages were so small that only a small monthly or weekly allowance could be paid in case of death or injury, the corporations and pro- prietors found it for their several interests to co-operate with their workmen by contributing to the general fund, and by assuming, for the sake of saving expense, the duty of receiving, investing, and paying it out to the proper persons. At the present time there is one of these associations con- nected with almost every railroad in England, and with nearly every one of the large mines and mining districts. Some of them are large in number, one of them, called "The Northumberland and Dui'ham Mines Permanent Re- lief Fund," numbering, in 1878, 70,000 members. A fixed allowance is paid over to each person entitled, whether the injury was caused b^ the negligence of a fellow- workman, or by his own negligence. Unless allowances were made to persons of each class, the scope of such an association would be comparatively limited ; because, according to the reports 88 STATISTICS OF LABOR. of the Royal Commis-iion ou Railway Accidents, published in the year 1877, (here were, during the four years from 1872 to 1875, 2,720 railway servants killed through their own negligence, and 238 from causes beyond their own con- trol; and there were 7,275 injured through their own negli- gence, and. 1,724 from causes beyond Iheir own control, — about twelve killed and four injured through their own fivult, to one killed or injured through the fault of some one else. The plan upon which these associations are organized may be illustrated by the plan of the one connected with Ihe North Western Railway, which employs about 45,000 men, 24,000 of whom are engaged in the actual operation of trains. Connected with this railway are two associations, an insur- ance and a provident society, — one to provide assistance to men so unfortunate as to meet with accidents, and one to provide for the necessities of sickness. The first, in case of a death, pays over to the family a sum varying from £20 to £40 ; and, in case of permanent disablement, from £25 to £35, according to the class of risk taken, and the amount of the premium paid. In case of temporary disablement or illness, twelve shillings to fifteen shillings a week are paid for a period of twenty-six weeks, unless recovery takes place before ; after this time has elapsed, a half allowance is paid. The pre- miums paid to the Insurance Society by the workmen, or rather deducted from their wages, vary, according to the class to which each belongs, from one penny to threepence a week ; and those paid to the Pi'ovident Society vary from two to four pence a week. The company contributes to the general fund of both societies about £2,300 a year, together with all the fines which are imposed upon the men for neglect or disobedience of the rules, orders or regulations of the company. The ri'presentatives of a workman who has paid twopence a week to the Insurance Society would re- ceive £35 iu case of his death ; were he temporarily dis- abled, he would at the utmost receive twelve shillino's a Aveek for twenty-six weeks, and half that allowance during the continuance of his disablement ; were he permanently disabled, £25 in addition to whatever weekly allowance he had received; and, were he to die from natural causes, his representatives would receive £10. The allowance to the EMPLOYERS' LIABILITY. 89 representatives of a foreman or a servant of a higher grade, who pays a prenuutn of threepence a weeli, is £40 in ease of his death ; if temporarily disal)led, he receives 18 shillings a week for twenty-six weeks, and half allowance thereafter; if permanently disabled, £35 in addition to any weekly al- lowance he may have received. These societies were es- tablished in 1871-2, and numbered five years ago 25,000 servants of the London & North Western Railway. The Great Western, the Great Northern, and the Midland Rail- ways have similar societies in an equally prosperous con- dition. Of the Midland Railway Friendly Society, the Fourth Report of the Commissiemers on Friendly Societies, pre- sented to Parliament in 1874, which contains the fullest and most carefully prepared information upon this subject, says, Part 1 , p. Ixviii : — " It is a peculiar feature, botli in some of the railwaj- friendlj- societies and of many of lliosc in collieries, that membership is made compulsory by the employer. " The Midland Railway Friendly Society, of which an account will be found in Mr. Stanley's Report, was established in 1860, and had, by 1871 8,295 members, and £7,600 capital. Rule 1 states that the directors ' have resolved to require all those in iheir employment who receive weekly wages (subject to the exceptions under the ruks) to become members;' and Rule 5, that ' it shall be imperative upon all servants employed in the passenger and goods departments, gangers, engine- drivers, and firemen receiving weekly wages, who may hereafter enter the service of the company, to become members of this societj". This rule is applicable to every one as above who has been one month anap- ])ointed servant of the company, at wages exceeding r2s. a week- Officers and servants in receipt of salaries shall have the option of join- ing, or not, as they may elect.' " The society is actively self-governed. Its financial organization does not, however, appear to be satisfactory, as its solvency depends not solely on contributions calculated according to the benefits assured, but partly on a fixed yearly grant from the railway company, which appar- ently was taken into account when fixing the rates of contribution, but which, in a society with a varying and probably increasing number of members, may or may not be sufficient for the purpose it affects to serve, and is probably relied on for serving. " The contribution to the benefit is uniform, 9d. a fortnight. The benefits, are medical attendance and 12s. a week, full sick pay, for twenty-six weeks; then 6s. a week for twenty-six weeks; then 4s. a week for the rest of sickness or ordinary illness. If the member be disabled by accident in the course of his duties, he receives los. a week 90 STATISTICS OF LABOR. for twenty-six weeks, then 7s. 6d. for twenty-six weeks, tlien 4s. In case of deatli from ordinary causes, tlie member's representatives receive £12. In case of deatli from accident in tiie service of the company, £25. There is a separate contribution of 3d. a fortnight for management, out of which tlie doctor is paid. The members' con- tributions are stopped out of their wages." The London and South Western Friendly Society, organ- ized upon a somewhat different plan, makes membership compulsory upon all servants in the traffic and freight department, and has rates of premiums graduated according to age, as general insurance companies have. The largest associations are among the miners, the North- umberland and Durham Associations numbering, as already stated, 70,000 in 1878 ; although many thousands of miners in these districts had not then joined it, and neai-ly half of the owners of collieries had not subscribed to its fund. After a careful examination of its condition by an expe- rienced actuary in 1878, when it had been seventeen years in operation, it was found possible to pay a pension worth £160 in case of death, or an allowance of eight shillings per week in case of permanent disablement, upon the pay- ment 1)3' each member of a premium of twopence per week. The contributions of the employers amount to from four- teen to twenty per cent of the amount paid in by the men. In the counties of Durham, Cumberland, and Staffordshire, as well as in other mining counties, there are likewise large associations which insure against sicJiflees and accidents, some of them receiving contributions from the proprietors of collieries, and some of them aided by their co-operation in making membership compulsory. Among the lead- miners of Northumberland and Durham there is likewise a similar society, supported in the same way ; and, although membership is not made compulsory, about three-fourths of the workmen in the mines are members. An allowance of ten shillings a week, in case of sickness or accident, is paid upon a premium of fivepence per week ; and, in case of death, £20 upon a premium of twopence per week. Besides these various associations, there is also, in con- nection with some of the railroads, — the North Western, EMPLOYERS' LIABILITY. 91 for example, — a pension list for the salaried staff, such as station-masters, clerks, and all above their grade, which, in the instance cited, is already supported by a large fund made up of assessments upon the members and contributions from the company. It is exclusively for the benefit of the salaried staff, and provides for cases of superannuation, as well as disabilitj' from illness or accident. In Yorkshire, the miners belonging to the association were paid, in conse- quence of injury, during the three years ending with 1876, the sum of £29,000 ; and during the five years ending with 1875, no less than 711 persons lost their lives in the mines from explosions of fire-damp, the falling in of roofs and coal, from accidents in shafts, and from other causes. This species of insurance, which is but the adaptation of the general principles of insurance, and the special features of accident insurance, to associations of this kind, has been in successful operation in Germany for many years ; and the English could have learned, if they did not, all the principles upon which their societies are formed, from the miners' associations of Germany. It had reached such a stage of general development seventeen years ago, that it was provided by the Allgemeineis Berggesetz — General Mining Laws — of June 24, 1865, applicable to all mines, and furnaces for the smelting of ore, that every mining district should have its own KnnjppscJiafls-Verein — Work- ingman's Association, — whoseconstitution should be subject to the approval of the local authorities, and in which mem- bership should be taken by both masters aiid workmen. By the form of constitution prescribed, every member must pay into a common fund a small proportion of his wages, or allow his employer to deduct from his wages a fixed amount, and pay it in for him. The employer is also obliged to pay in a certain sum, usually amounting to about one- half the sum contributed by the men. The object of these associations is to make soaie provision, in colloquial phrase, for a rainy day ; some provision to meet the exigencies of accident, sickness, or death ; some provision in sickness for medicine and medical attendance ; together with a regular allowance for the support of any member, if necessary, for the rest of his life, or during his temporary disablement ; 92 STATISTICS OF LABOR. or, ill case of his death, to give him a decent burial, and take care of his children till they reach the age of fourteen, and his widow during her life, or until she marries again. All associations of miners already formed were obliged to con- form to this law, and adopt the form of constitution which it prescribed. In matters of this kind, and in almost all matters which relate to the general protection of the poorer classes, and the distril>ution of charities, the New World can learn much from the Old, where, in an older form of society, such problems were much earlier presented to social scien- tists for solution. The system has worked well both in England and Germany. It was necessary to make this form of insurance compulsory, because many workmen would not otherwise make suitable provision for the future, and employers would not otherwise lend their co-operation. If looked upon simply as a provision against the need of public charity, it has been of great service, by keeping indigent miners out of the workhouse. A peculiar feature of the German law provides that the courts may, upon proper request, determine whether the sum paid by way of assistance shall all be paid at once, or by weekly' or monthly instalments ; and so thoroughly has the sj'stem become established, that it is not uncommon now for large employers of labor to insure themselves, in one general policy, against loss by the payment of damages and assess.ments for injuries to their workmen. And this practice is not uncommon in Great Britain, especially since the passage, in 1880, of the Employers' Liability Act. In these two ways the workman is insured by the association to which ho belongs, and his employer by some general insurance company. In the United States the principal experiment in this class of insurance, on the mutual contribution jjlan, is that of the Baltimore & Ohio Railroad Company. The em- ployees of this comi)any have an association, organized in May, 1880, under the name of the Baltimore and Ohio Employees' Relief Association. This organization is in successful operation, and its scheme is the best for the em- ployees of American railroads. It is so complete, we have given in Appendix B the letter of the company proposing the plan, and the co:istitutiou and by-laws of the associa- EMPLOYEES' LIABILITY. , r3 tion. This association has heen incoi'ponited by the Mary- laud legislature by Act of May 3, 1882. Should kiudred associations be formed in this State, they could be incorporated under our general laws. There might bo a conibinati6u of several or all the railroad companies of the State for the formation of such an association, or of the factories of a place or of a county. There seems to be no doubt that with such associations in existence, and in successful oper- ation, much progress would be witnessed in the creation of harmony between employers and employees. When this question of insurance is considered in con- nection with the general question under discussion, it is naturally asked whether the provision thereby made t\iv employees, should such a system be adopted in this country, might not be an ample substitute for the proposed inciease of the liability of employers. And, while it is true that such a form of insurance would meet the necessities of many more employees than would the proposed change in the law of liabilit\', it is equally true, that because some provision has been made for an employee who has been injured through his own carelessness, is no reason for refusing to make additional legal provision for a person who has been injured through the carelessness of his employer. The first person could in no case recover damages, because the injury was caused by his own contributory negligence. Has not the second person, whose injury was caused by the negli- gence of his employer, a moral, and ought he not to have ii legal, right to receive the additional protection and assist- ance of compensation in damages for the injury inflicted upon him ? Inasmuch as railroad companies are not charitable institu- tions, but, like all other business enterprises, are managed chiefly in the interest of the stockholders who furnish the capita], is it impossible that the annual contributions of the companies are made on the basis of the total sum annually paid for damages and assistance to employees? If so, are not the employees who are injured by companies' negligence actually contributing largely to the funds out of which the employees injured by their own negligence receive their money? The force of this inquiry is even more apparent 94 STATISTICS OF LABOR. when considered in connection with tlie proposals made, after the English act was passed, by railroad companies to increase their contributions, on condition that their em- ployees would contract tliemselves out of the operation of the act. The employer should not be aslied to help pay damages resulting from injuries caused by the negligence of the employer's agent. And it is worthy of remark, that when this same question came under the consideration of the select committees of Parliament, then investigating the general subject, and the amounts paid by way of insurance were stated by the managers of the various railway's, the committees looked upon the small stipend which the em- ployee thereby receives as only a make-shift, and no equiva- lent for the wrong and misery he had suffered. Why should he who has been injured by another, stand upon the same legal plane with him, who, by his own act, has injured himself? Infkequency or the Recovery of Damages. While, during the nine years ending with Sept. 30, 1881, 358 employees were killed upon the railroads of this Com- monwealth, and 653 were reported as injured, it is im- probable, — so strictly is the law of contributory negligence enforced, so easy is it to avoid liability under the rule re- quiring an employer to exercise diie care in the selection and rtpair of his machinery, and under the other rule enforc- ing liability where there is personal interference or super- vision, — that in less than ten per cent of these cases have any damages been recovered. And j'et, if it is safe to accept the opinion of a man of such large experience and information as Mr. Evans, as well as to believe that the rail- ways of Great Britain and Ireland are as safely managed as our own, at least one-half of these deaths and injuties are in part remotely due to one or more of the six causes men- tioned in the memorial of the ten thousand English railway emplo^'ees ; viz., 1, excessive hours of labor; 2, nan-enforce- ment of certain of the companies' rules, ostensibly inade for the protection of the men ; 3, the non adoption of (he most approved appliances conducive to safety in the wc^rking of railways; 4, the want of proper accommodations for work- EMPLOYERS' LIABILITY. 95 ing tho freight and traffic; 5, the employment of inefficient persons for the performance of responsible duties ; 6, the employment of an insufficient number of men. During four j'ears not a single instance of the recovery of damages by an employee came to the knowledge of any of the officers of the Society of Railway Servants ; although during the four years from 1872 to 1875, inclusive, accord- ing to the reports of the Royal Commission, 238 were re- ported killed, and 172 injured, from causes beyond their own control. This shows the severity of the present law, allowing common employment to be a defence to such actions. In this connection it may be remembered that of 83 employees killed on the London and Xorth Western Rail- way in 1876, only six, or about eight per cent, were killed, said the general manager, from causes beyond their own control. And Mr. Moon, chairman of the Board of Direct- ors of this railway, which employs about 50,000 men, said, at a meeting of some of the employees, called to consider whether to accept the provisions of the "Employers' Lia- bility Act," that in not more than two per cent of tha cases resulting in death or injury could damages be recovered. It is impossible to give a satisfactory estimate of the number of cases in our own State, because the reports of and to the Railroad Commissioners are not sufficiently explicit, and there are no reports of accidents occurring in mechanical industries, upon which to base an intelligent estimate. Should the same Principle be applied to Defects in Machinery? Under the law, as it stands at present, the employer is held to a stricter responsibility to third persons than to his employees, for injuries caused by defects in machinery and plant; and, if his liability to third persons and employees, for injuries caused by the neglect of his servants and agents, is to be made the same, should it not, upon a like principle and for equally sound reasons, be made the same for injuries caused by defects in machinery ? At present the employer is responsible in damages to third persons for injuries caused by defects in his tools, implements, works, machinery and plant, which reasonable care on his part could have discov- 96 STATISTICS OF LABOR. ered and obviated ; though not for secret defects resulting from the negligence of persons from whom he bought the tools, machinery, etc., used in the business. The principal reason at the basis of this liability is, that, as some one must take the risk of defects, it is less unjust for him to take it who makes or buys the machinery or plant, who can accept or reject them, who owns and uses them, who ought to keep them in repair, and can direct when they should be repaired, or, when worn out, replaced, than for strangers who know nothing about the machinery or plant. If the employer's liability is to be increased in respect to personal damages caused by the acts of his agents, why should it not be increased in respect to damages likewise caused by the negligence of agents in omitting to discover and remedy the defects ? He is now liable to employees only for defects known per- sonally to himself, and unknown to the servant injured, — in other words, for defects which have come within his own knowledge or information. The practical difficulty of prov- ing in court at a trial this actual knowledge or information, makes such a liability almost a barren security. But if, as is almost always the case in mechanical and manufacturing employments, the tools or machinery are not used by him- self, but by his servants, employees, and agents, he is entirely free from responsibility. Such a burden of risk as is imposed upon him in his relations to third persons is entirely removed, and the servant must take the risk upop himself. Unless the employer is made responsible for the acta of his agents, he is not obliged to use even reasonable care in selecting tools and machinery, and keeping them in good condition, in detecting and obviating any defects. He may, so far as this liability to his employees is concerned, allow his servants to do as they please ; to select unsuitable machinery, unsuitable in design or execution ; to neglect to take proper care of it ; may allow them to use it in a careless and improper manner, and therefore escape the consequences of their negligence. When it is remembered that this extension of the rule would not make him liable for secret defects, nor defects which a reasonable care could not discover and obviate, nor defects of which the person injured was aware, either through his EMPLOYERS' LIABILITY. 97 own knowlego or the information of others, the dansrer of extending tlie rule does not seem so great. Are there any Agents for whose Acts the Employer should be made llable ? In considering the application of any practical method of making responsible large employers of labor, such as railroad corporations, the owners of factories and mines, and persons carrying on any large mercantile, manufacturing, or mechani- cal business, with employees arranged in different classes, the superior having authority over the inferior grades, the question at once arises, For the acts of what agents should the employer be made liable, in order that the objects sought by a change in the law may be better accomplished ? The general object to be accomplished is, in the words of Lord Sherbrooke, to make " the funds of every indus- trial undertaking liable to compensate any person employed in such undertaking for any injury he may receive by reason of the negligence of any person exercising authority mediately or immediately derived from the owners of such undertaking." To accomplish this object there seems to be no other way than to make the employer liable for the neg- ligence of every superior workman, in whatever grade, from the employer down, who has authority over the servant injured. For instance, as a brakeman on a freight train might be injured by the negligent act, order, or direction of the board of directors, the superintendent, the general freiffht agent or the conductor of his train, each of whom is vested with authority over him, — it would be necessary, lost the corporation should escape liability for the negligence of some one of them, to make it liable for the negligence of all of them. In an employment where the labor is in such a way classified, where authority may be delegated and sub-delegated, the master should be made liable for the negligence of every man in the chain between the master and the injured employee. When the Parliamentary Com- mittees had this subject under consideration, George Find- lay, the Traffic Manager of the London and North Western Railway, being asked where the line of responsibility should be drawn, said that it was no use to make the corporation 98 STATISTICS OF LABOR. liable for the acts of the manager alone; "you must make every man in active control over the staff" [ordinary em- ployees] " rcspoi^sible, if you are to accomplish the objects of those who brought in this bill ; " so great is the authority over the management of trains necessarily left with officers of inferior grades. And James Grierson, the' General Manager of the "Western Railway, in corroborating this opinion, illustrated it by saying, "In fact, take the case of a signalman at a junction or a station : he then, in fact, is the manager of the railway for the time-being ; he has the con- trol of the drivers and the guards, and it is under his instructions that the work is carried on ; by a mistake of his an accident occurs, and a driver [engineer] is killed." Mr. Justice Willes, in the case of Murray v. Currie,* has suggested the rule which should be followed out in determin- DO ing this liability. "I apprehend," he says, "it to be a clear rule, in ascertaining who is liable for the act of a wrong- doer, that you must look to the wrong-doer himself, or to the first person in the ascending line, Avho is the employer and has control of the work." Where there are other work- men vested with authority which the wrong-doer is bound to obey, and intervening between him and the employer, inider the legitimate extension of this rule, he should be responsible for their acts. Reference to section 1 of the Liability Act (Appendix A) will show how the English Parliament expressed in words the object sought to be accomplished. Should the Liability be Limited in Amount? The question naturally occurs whether any limit should be placed upon the amount of damages which can be re- covered. In the third section of the English act, the Con- servatives, after somewhat narrowing, by section 2, the natui-e of the liability created by the first section, affixed a limit to the sum which could be recovered equal to the estimated earnings for the three years preceding the injury. This section prevented a man thrown out of emplo^'ment for four years or more, made a sufferer for years, or a cripple for life, from recovering more than three years' wages. It • 6 L. p. 24. EMPLOYERS' LIABILITY. 99 is not easy to see why all injuries slionld bo treated alike. It is a crude justice which declines to discriminate between dissimilar cases, to investigate the circunistances of each case, to consider the facts. on both sides, to wein^h the cvi- dence in the scales of a wise discretion, and meto out justice in unequal meastire, as the unequal merits of ditferent cases require. What would bo thought of a criminal code Avhich punished alike all crimes above a misdemeanor? which attached the same penalty to arson, highway robbery, rape, manslaughter, high treason, and murder? In the pro- gress of criminal injustice towards justice, especially since Jeremy Beuthum pointed out the necessity of reforming so many of its abuses, legislatures and judges have become more in the habit of distinguishing between the difFeriu"; grades of crime, and no longer are all the higher ofFences punishable with death. What would be thought of a system of rewards and punishments, which bestowed the same praise upon the schot)l-J)f)y who learned his lessons well ; upon the statesman' or soldier who saved the State from anarchy and disunion ; upon Grace Darling, for saving human lives at her own peril ; upon Philip Sidney, for giving a glass of water to a soldier dying on the battle-field, more in need than himself? Such legislation as limits the amount of damages to three years' earnings is a step backward. What occasion exists for adopting so unjust a rule in relation to employees, when all other questions of damage are determined upon their merits, — upon the circumstances of each particular case? Damages to the person, to real estate, and to personal property, are assessed by courts or juries as each case re- quires. Why should such a distinction be drawn against employees? Is it said that juries generally award damages against corporations and wealthy employers? The obvious answer is, that they generally deserve a verdict against them ; that in a very large majority of instances the plaintiff in a suit at law deserves a favorable verdict. If objection is made to the jury system as unjust to corporations, why is not the rule made general, that in no instance shall damages above a certain amount be recovered against them? If it is said that this rule has been adopted in relation to highway damages against towns, may it not be asked whether such a precedent ought to be followed? 100 STATISTICS OF LABOIi. SiiouiyD THE Employee be allowed to hake a Coxtuact EELEASING HIS EMPLOYER FROM LfABILITY? After the passage of the English Act, the question arose whether the employee could and would contract himself out of the operation of the act. There was nothing in it permit- ting or forbidding such a contract ; and some of the large railroads and mining corporations attempted to compel their lal)orers to sign contracts of hire releasing them from lia- bility for damages. There was no law to prevent the work- men from signing such contracts; but they were urged not to do so by their own reason and interest, as well as by the advice of Mr. Macdonald, Mr. William Crawford, Secretary of the Durham Miners, Mr. Benjamin Pi ckard,, Secretary of the West Yorkshire Miners, and every one else who had earnestly labored to secure the passage of the act. Having obtained, after years of labor and agitation, a law of somo benefit, — though the benefit was not so great as had been hoped for, — it seemed the height of folly to sign it away. The chief, if hot the only, advantage offered in considera- tion of this release, was an extension and enlargement of the benefits of insurance. The same paltry benefit which had been used to restrain the passage of the bill while it wns be- fore Pai'liament, — the benefit of receiving, upon payment by them of half the insurance premiimis, a continuance of their wages for a few weeks or months, with an allowance of £■10 or £50 in case of death, — AvtiS again offered to them, together with an increase amounting to about two-thirds of what they were already entitled to, provided they would sign away their rights under the act. Unless they would do this, they were in some instances threatened with a discharge from employment, and a discontinuance of the small contri- butions already made to their fund. In some places large public meetings were called to listen to these proposals, and to consider the. wisdom of adopting them. There were several large meetings, — one in Liverpool, — of the em- ployees of the London and North Western Railway, which were addressed b}' officers of the company, and also by their fellow- workmen. In most instances the workmen voted to adhere to their rights under the act. At some of the meet- NOV EMPLOYEES' LIABILITY. V Nlol /^ ings the vote was unanimous agiinst bartering them a\vay~ for what were thought trivial consideruticjns. The clause limiling liability to the amount of thr^c years' wages had made it impossible in general to recover more than from £150 to £200 ; and, because contributory negligence pre- vented the recovery of damages in all but from two to ten per cent of the cases of injury, the benefits of the act were in reality less than they at first sight appeared to be. But when the excitement had somewhat subsided, and the miners and laborers realized how slight Ihe advantages given them really were, there was little doubt that more harmonious counsels would in many instances prevail, and that, in ex- change for a more liberal extension of the benefits of mutual insurance, many of the laborers would be willing to contract themselves out of the act. The clause limiting liability to three years' wages, and the lack of any clause forbidding the making of any contract of release, were the powerful levers used by the employers to secure the adoption of their scheme of mutual insurance. In Durham, West Yorkshire, and other mining districts, it was for awhile feared that trouble might arise ; and strikes were apprehended from the course adopted in some of the collieries of threatening to withdraw further contributions to the laborers' insurance and protective fund, as well as in consequence of the refusal to allow them to work, unless they would sign the contract waiving thuir risfht to damiiges. The injustice of attempting to compel the laborer to sign such a contract, is manifest from the consideration that he is usually less able than the employer to care for himself, less provident and thoughtful for the future, and more ready; upon a slight necessity, to sacrifice a future advantage for a present benefit. Their positions are unequal. While in general there might be a diiference of opinion as to the wis- dom of making laws to restrict the right of contract, there is as little room as possible for a difference of opinion as to the need of affording the laborer some legislative protection. If ever a law restricting the right of contract ought to be made, if ever the State should extend over workmen a wider pro- tection, making them, as seamen and minors are made, to a certain degree, wards of the State, it should be by prevent- 102 STATISTICS OF LABOE. ing them from signing siway tbeir right to recover damages for paisoiial injuries, which the delusion of hope so easily makes them believe is in reality a worthless beuelit. It is the lack of such a provision as this which has made the English Act of little value ; has, during the past two yours, kept the relation of employer aud employed unstable and uncertain; has encouraged the former to persevere in getting the employee to sign a release of liability, and has encouraged the employee to persevere in hoping that Parlia- ment would come to his relief by amending the law. In January 1881, and within three weeks of the time Avhen the English Act went into operation, Mr. Macdonald, Mr. Broadhurst, Mr. Burt, and Mr. Peddle, members of Parliiimeut, introduced a bill to amend the law in this par- ticular, by providing that the act of 1880 "should have effect, and be enforced by every court in every case, notwith- standing any contract or agreement excluding all or any of the provisions of said act, or otherwise interfering with the operation thereof: provided (l),that this act shall not affect any contract or agreement made before the passing of this act; and (2), that in determining in any case the amount of compensation paj'able under the said act by an employer, the court shall take into consideration the value of any pay- ment or contribution made by such employer to such insur- ance fund or compensation fund, to the extent to which any person who would otherwise be entitled to the compensation under the act, has actually received compensation out of such payment or contribution at the expense of such em- ployer." This bill was prepared to meet the exigencies ■which it was foreseen would arise, by the Parliamentary Committee of the Trades Union Congress. It failed at that time to gain the co-operation of the Gladstone Ministry, because, as Mr. Dodson, who had charge, for the Govern- ment, of the Act of 1880 in its passage through the House of Commons, said, when the amendment was introduced, in answer to a question by Air. Sheridan : "The Government have no intention, at all events before full experience of the working of the act, to propose a bill to amend its provisions. I especially hope that the power of free contract will, if resorted to, be used with such good sense, fairness, and mod- EMPLOYERS' LIABILITY. 103 eration by all concerned, thsit no occasion will arise for cur- tailing it in tlio interest of any party ; " which meant, per- bajjs, that if the employer made an unfair use of the right of free contract, the Government would pass the amend- ment. The subject is still, at this writing, under discussion in England, in the press, among the employees, and in Par- liament. The law of this Commonwealth at present protects the employee in this respect. Chapter 74, section 3, of the Public Statutes says : " No person or corporation shall, b^' a special contract with per- sons in his or its employ, exempt hinaself or itself from any. liability which he or it might otherwise be under to such persons for injuries suffered by them in their employment, and which result from the employer's own negligence, or from the negligence of other persons in his or its employ." Short History of the Passage of the English Bill. After several years of discussion and agitation, the ques- tion of allowing workmen the same right to recover dam- ages of their emplo3'ers that other persons have, at last reached such a stage of advancement that it was thought advisable for the English Liberals to adopt the idea as a part of their political creed, in order to secure" the votes of work- ingmen who were in favor of it. This question was only a branch of the general subject of the rights of labor, which has been before the English people so many years ; has resulted in the formation of separate societies, trades and protective unions ; and has found advocates among the ablest and most liberal men of the Liberal party, by whom the rights of labor have been advocated in Parliament. And this reform, like many others, has gained its way gradually through the agency of a separate political organization. At the last general election, in 1879-80, the candidates at almost all the hustings throughout Great Britain were asked, before the polls were opened, if they would support this measure, and it was made a party issue. For eight or more years the question had been before the English people and Parliament ; had received general public consideration ; and its friends were too conversant with the arts of successful agitation and rif irm, to neglect so auspicious an opportunity 104 STATISTICS OF LAEOK. to secure a change in the law. On the 10th of Februiry, 1880, the bill presented by the Earl Do la Warr — which, with some amendments, on the 7th of Sejitember following became a law — was ordered printed by the House of Lords ; but the session had progressed into the summer before the House of Commons went into committee for a discussion of the bill. Mr. A. Macdonald, who has since died, was one of the leaders in the cause. This bill fell so far below the Avants of the foremost advocates of a change in the law, that Sir Henry Jackson expressed himself as altogether dissatis- fied with it ; and Mr. Pease feared the bill would do more harm than good to those whom it was intended to beneBt. The Parliamentary discussion, begun in July, was carried on at many sittings through that and the following month, Mr. Dodson having charge of the bill in behalf of the Gov- ernment. As is usual in such cases, various amendments were proposed by conservative members hostile to the meas ure, among the first of which was one relating to the sub- ject of mutual insurance, — a make-shift which has been urged through all the progress of this reform, from the time of its earliest discussion down to the present day, and which still threatens to defeat the objects of the act. It is not impossible that the accident insurance companies, which have been, and will probably continue to be, the principal gainers by this amendment, may have early been its promoters. Another amendment easily made, persistently urged, defeated in the House of Commons, but finally adopted in the House of Lords under the leadership of Lord Beaconsfield, limited the amount of compensation which could be recovered to the estimated earnings of the throe years preceding the injury. Another amendment, which forms the fifth sub-section of section 1, relating to damages recoverable by railway em- ployees, at a general conference of members of Parliament, workingmen, railway servants, and tligir representatives, held before the bill was reported to the House, was deemed very tuisatisfactory, but was finally assented to on the ground that it was the best that could probably be obtained in op- position to the powerful influence of the railroad lobby. In connection with the subject of accident insurance, it was stated in a published letter, by Mr. David Chadwick, after EMPLOYERS' LIABILITY. 105 a careful investigation, that upon the payment of six shillings a year by the workmen, and £200 by their employer, 3,000 persons could be insured, each in the sum of £50, to be paid in case of accidental death. One of the motions to defeat the bill was made by Mr. Gorst to include wiihin its operation all the workmen em- ployed in Her Majesty's arsenals and dock-yards ; and sup- ported by Mr. Boord, Sir H. Wolff, Sir H. Holland and Mr. Newdegate. But the Attorney General and Mr. Childers pointed out that by a Treasury Minute the men in the dock- yards now enjoyed greater privileges than they would re- ceive under the bill. Instead of receiving, in case of injury, compensation equal in amount to three years' wages, the " establishment men," so called, might be granted by the Treasury a maximum compensation equal to ten years' wages ; and the non-establishment men might receive a sum equal in amount to their wages for nine years. In case of death, their widows and children would receive larger gratuities than this bill allowed ; but it was, of course, discretionary with the Treasury to grant any allowance of any kind. Before the bill passed the House of Lords, a powerful op- position was aroused. The associated coal owners of South "Wales threatened, in case of its passage, to withdraw their contributions to the insurance fund ; which was somewhat of an empty threat, because their contributions did not equal 25 per cent of the total premiums of the men. At the half- yearly meeting of the London and North Western Railway, Mr. Moon, the chairman of the Board of Directors, declared that the capitalists bad not a fair hearing before Parliament ; and he was, as it now ai)pears, unnecessarily afraid that the pas- sage of the bill would " drive the capital of the country away." And at the North London Railway meeting at Euston Station, on the day after the bill passed the House of Commons, Mr. Bancroft, the chairman, made especial objection to the fifth sub-section of section 1, relating to railways, which had been added as an amendment to the original bill, because it was feared that without it railway companies might escape the imposition of suitable liabilities. But he expressed him- self as willing to submit to the other provisions of this sec- tion. 106 STATISTICS OF I>ABOE. The master-builders — how many is not knowa — peti- tioned the House of Lords to have the third sub-section of section 1 stricken out ; because, as this section stands, with the dcfiuition afterwards given to the expression '• person who has superintendence entrusted to him," the defence of common employment is almost altogether abolished ; and likewise proposed an amendment to the fourth sub-section, which was afterwards substantially adopted as the third sub- section of section 2; and the powerful aid of Lord Cairns, a Conservative Ex-Chancellor, was invoked. The former wrote for publication a letter in which, — while siiying that the railway companies ought not to complain because they are obliged to assume towards their employees the same responsibility as they agreed, when they received their charters, to assume towards their passengers, — he ex- pressed the opinion that freedom of contract ought not to be restrained. Lord Cairns, in a letter to the " Times " signed " C," while acknowledging the right of the workman to say that for the future he declines to be considered as making, at the time he enters into his employer's service, an implied con- tract to run the risks of the employment, objects to the substitution attempted by the bill, of what he calls a Par- liamentary contract of employers' liability, for an implied contract of non-liability. He proposes to "get rid of the judge-made law of implied contract by a short enactment, that where a workman would otherwise be entitled to an action for negligence against his employer, he shall not be defeated merely by the circumstance that he and the person actually causing the injury were in a common employment; with a declaration that this enactment is not to interfere with auy express contract on the subject which the employed and the employer may make." As Lord Cairns enjoys, with Lord Justice Blackburn, the enviable distinction of being one of the two ablest of living English judges, — if the merit of judicial opinions is to be taken as the criterion, — it will be well, perhaps, to print the entire letter : — " The Employers' Liability Bill has passed the House of Commons. At this season of the year it is impossible that there can be a real con- EMPLOYEES' LIABILITY. 107 sideracion of such a bill by the House of Lords. I do not wish to inquire whose fault this is, or whether it is the fault of any one: I only desire to state what is the fact. The discussion of the measure in the House of Commons has shown one thing, if it has shown nothing else, — that the subject is much more difficult than was commonly supposed. An attempt has been made to lay down certain formulas or rules which are to meet each and every variety of the infinitely varying trades, employments and industries of the country. The result has been the introduction into the bill of a series of qualifications, modifica- tions, limitations, exemptions and enlargements, which must necessarily lead to much uncertainty, great litigation, considerable ill-feeling, and probably considerable disappointment, and to a mass of new law gradually manufactured by judges, or, what is worse, by juries. These reflections, and the circumstance that it is in your columns alone that a deliberate hearing can now be obtained, induce me to ask in this way. Is it cleur that this legislation begins at the right end ? Or, rather, is it not clear that it begins at the wrong end ? How or why is it neces- sary that Parliament should step in and define when and to what extent an employer of any of the various forms of labor in this country shall be liable to his workman for an injury cccasioned by the negligence of a fellow-workman ? Some fifty years ago the courts of law laid down that it was an iiup'ied term in every contract of hiring that the person hired took the risk of any negligence in a fellow-workman. This was not an unreasonable supposition in itself, and it was probably not untrue in fact, as things then stood. But there cannot continue to be an implied term in contracts where one of the parties to the con- tracts distinctly repudiates the existence of any such term. That is now the position of the workmen. They say, in substance, that what- ever express contracts they may be willing to make, they have not made, and do not choose to have it asserted that they have made, a con- tract containing this implied term. ■ " It appears to me that this is the crucial question which the legis- lature have to meet, and that it would be better either to meet it directly, or else to leave the law as it stands. The present bill does not meet the question. It proposes to substitute, for the implied con- tract which the workmen disavow, another special Parliamentary con- tract, which neither employers nor employed have ever entered into, which they probably do not understand, and which, in numberless cases, will be found in practice to be so irksome to one or other or both of the parties, that they wOl begin at once to contract themselves out of the act. My proposal would be to get rid of the judge-made law of implied contract by a short enactment, that where a workman would otherwise be entitled to an action for negligence against his employer, he shall not be defeated merely by the circumstance that he and the person actually causing the injury were in a common employ- ment; with a declaration that this enactment is not to interfere with any express contract on the subject which the employed and the em- plnyer may make. The result of such an enactment would be that every employer and workman would make the contract which would 108 STATISTICS OF LABOR. be suitable for the partinular employment. One employer would set up a system of insurance ; another would indicate the particular ser- vants for whose acts alone he would be answerable. Some might exclude particular risks, or make the liability or freedom from liability enter as an ingredient into the amount of wages. The employers and workmen arc best able to understand their own work and their own interests. They are quite competent to make their own bargain on equal terms, and to regulate, so far as it is right to do so, the rate of wages by the amount of risk incurred. It maj- be said that a contract may, as the bill stands, be made to supersede the bill. My answer is, that the moral and social effect, where Parliament merely removes legal difficulties, and invites parties to make their contracts in the way that best suits them, is very different Irom the effect of a bill which makes, as it were, a Parliamentary contract for the parties, and then drives them by its inaptitude to make stipulations against it. I cannot think that the present bill, if it passes, can settle this question, and it may not be too late to suggest a more lasting solution of it.'' Whoa the bill came up in the House of Lords, the Lord ChaDcellor, Lord Selborne, explained at considerable leuglh the condition of the law and the provisions of tiio bill, together with their probable effect, citing the law of France and of Germany as in harmony with the change proposed, as well as the law of the State of Missouri in this country. But, in this single particular, as has been seen, he seems to have been misinformed ; for the effect of the Missouri statute was destroyed by the decision* of the judges that the phrase " any person " did not include a " fellow-servant." He closed with suggesting, on behalf of the government, two slight amendments. Viscount Cranbrook commenced, on the part of the Con- servatives, the discussion in opposition, using various argu- ments, not forgetting to present the horror so often appre- hended by legislative assemblies, that low attorneys would profit by the litigation with which the country was in danger of being deluged. These apprehensions seem to have been groundless, as, during the first year in which the act was in operation, only thirteen claims, says an English hiw journal, were brought, of which five were unsuccessful, and the damages recovered in the other eight amounted on an aver- age to £83. Without attempting to give a summary of the dispute and • See ante, pp. 41 and 42. EMPLOYEES' LIABILITY. 109 the arguments, which were in the main a repetition of the ol>jeetions already disciissccl, the result Avill perhaps be uiulcrstood by remembering that, on motion of Lord Bra- bourne, sub-section three of section 1 was stricken out, but afterwards agreed to because the Commons insisted upon its insertion ; and the operation of the act was limited, upon the motion of the Etirl of Beaconsfield, to Doc. 31, 1887, — seven years. The genius of legislation is compro- mise ; but so much was given up on both sides, that neither the friends nor opponents of the measure were satisfied, and the employees are now insisting upon further legislation. This history of the passage of the English act has been given to show the difficulty attending the reversal of a princi- jjle of common law, and to aid the discussion of the measure to come before our own legislature. The Operation of the Act. The passage of an act, limited in its operation to seven years, which restricted the amount of compensation to be recovered to three years' earnings, and which, according to the opinion of ^Ir. Moon, the chairman of the London and Worth Western Railway, was applical)le to not more than two per cent of all the cases of death or injury occurring to eihployees, would not seem to be the occasion for strikes and' disagreements between employers and the employed. And yet some large employers of labor had believed, or during the excitement of public speaking had worked them- selves up to the belief, that the act would create a revolution in existing relations, would drive capital out of the country and laborers , out of employment, and prove a hardship to one class, and of no benefit to the other. Why the hardship of paying damages is not correspondingly a benefit to the ' persons receiving them, is not apparent. The act was to go into effect on the 1st of January, 1881, about four months after its passage ; and the first question presented to both parties was whether the workmen could contract themselves out of it. Almost all the solicitors ' thought such a contract valid ; but one of the judges, before whom a claim was presented, thought that to allow such a contract would be against public policy. The Attorney no STATISTICS OF LABOR. General, Sir Henry James, said, in reply to a communi- cition from the secretary of the Amalgamated Society of Railway Servants, asking if the signing by a workman of a release from all liability would, in the event of his death, prevent his widow and children from recovering damages : — " In the event of a railway servant contracting to relieve the com- pany of liability under the Employers' Liability Act, the company would not be liable, in case of his death, to the man's personal repre- sentatives, any more than they would be to him if injured and living." Having ascertained that a contract of release would defeat any claim for damages, some of the large employers of labor, unnecessarily apprehensive, as it now appears, begain to take measures to secure such a release from each of their work- men ; and, ill order to accomplish this purpose, made pro- posals to extend the benefits of the insurance funds by increasing their subscriptions, and threatened to withdraw the subscriptions they were then making, and perhaps to discontinue work, unless those proposals were accepted. The summary discontinuance of labor' called a strike is usu- ally too great an injury to the employer, and the proprietors of mines have of late had too bitter an experience, to war- rant their incurring, without due deliberation, the risk of such an event. However, the course which they pursued, without, perhaps, a sufficiently careful estimation of the value of the object sought, precipitated strikes in some of the mining districts, of short duration, to be sure, but suffi- ciently severe to raise the price of coals at Manchester, through the inability of the collieries to supply the demand of the factories, to almost famine prices. In reviewing, in the light of to-day, the disagreements which attended the attempt of the employers, railroads cor- porations and proprietors of collieries, to obtain over their workmen what seems to be so paltry an advantage, it seems strange that a more careful estimate was not made of the benefit sought. It seems strange, if it is true, as reported by a leading law journal, that during the first eleven months eight judgments, amounting in all to £664, were obtained, that such ignorance as prevailed should have been allowed to blind the eyes of so many people ; strange that the leaders EMPLOYEES' LIABILITY. Ill ia this reform should not have better estimated the benefits which they hoped to confer upon the workingmen ; and stranger still, that intelligent employers, with the best of oppoitnnitics for ascertaining their probable liabilities, with the facts in possession or within reach upon which to base a reliable estimate of the vast proportion of cases of injury cut ofi" from the recovery of damages by the contributory negligence of the sufferers, should not have more readily acceeded to the wishes of the promoters of this act. The expectation that the flood-gates of litigation would be opened, and the courts deluged with actions for damages, happily has not been realized. Upon the authority of the " Law Times," a conservative journal of the proceedings of the courts, it is stated that during the first eighteen months of the operation of the act, less than one hundred cases had been brought to trial, a fair proportion of which had proved successful ; that probably less than £3,000 bad been recov- ered in damages, and au equal amount in costs ; and, if the past year may be taken as a test, " the individual employer would almost be deemed justified in regarding his risk in the same extraordinary way as the risk from lightning or foreign invasion. Moreover, against this risk he can insure by payment of almost nominal rates." And, while the doc- trine of common employment remains almost as before, there has been, on account of the ambiguity of the act, and the uncertainty as to its meaning, little gained for the em- ployees except under the section relating to railways. This is not the first attempt at reform, which, in consequence of the legal astuteness of its opponents, has proved abortive. With the first clause, which made them liable for "any defect in the condition of their ways, works, machinery and plant," the opponents of the bill seem to have expressed no dissatisfaction. With the second clause, which made them liable "for the negligence of any person in the service of the employer who has any superintendence entrusted to him," they seem to have been satisfied. Against the fourth clause, which made them liable for "the act or omission of any person in the service of the employer, done or made in obedience to the rules or by-laws of the employer," etc., they seem to have made little opposition, and to have been satisfied 112 STATISTICS OF LABOR. with the amendment made to it, providing " that where a rule or by-law has been approved or has been accepted as a proper rule or by-law by one of Her Majesty's principal secretaries of State, or by the Board of Trade, or any other department of the government, under or by virtue of an act of Parliament," etc., which allowed a railroad corporation or the proprietors of a mine or factory, or any employer of labor, to submit the body of rules and by-laws, made for the government of its workmen and the general conduct of its business, to proper government oiEcers for approval ; and if they were approved, the employer was released from liability under that clause of the act. And clause five, which made every railroad corporation liable for "the negligence of any person in the service of the emploj-er, who has the charge or con- trol of any signal, points, locomotive engine, or train upon a railway," does not seem to have been considered by sev- eral of the railroad companies as imposing a very unreason- able responsibility, does not appear to have caused, during almost two years, a loss worth considering by a wealthy cor- poration. It seems to have assisted, by awakening through fear of losses an unusual anxiety concerning the lives of their passengers, in creating a more general confidence in the safety of railway travel; and, if the immediate effect of the act has not been altogether what was expected by its friends, the remote effect has been a general benefit to the general public. Although this real or Cancied security may not be lasting, because the railroad companies may soon relax the unusual efforts they have been impelled of late to make, it would seem at this time as though the substantial benefit which the workingman has failed to get under this clause has been realized by the general public. Clause three, which imposed liability for " the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed," awakened the most apprehension, because of the vague uncertainty as to how heavy a responsibility was really imposed. Lord Bra- bourne, at the instigation of some of the master-builders, vainly attempted, as has been said, to prevent its passage EMPLOYERS' LIABILITY. 113 through the House of Lords. The apprehension awakened by it seems, however, to have been unnecessary ; for, upon the best information obtained, it has not permitted the recov- ery, in a single year, of an amonnt of damages equal to the sum total of the judgments ordinarily obtained in a single week in the municipal court of the city of Boston. The resolution of the legislature directed an examination of the law and an investigation of the facts bearing upon this subject, which has been done fairly and candidly, as an inquiry after information, and not as an attempt to prove a theory. And, so far as the operation of the English act is concerned, it seems just to say that, in the direct benefit conferred upon workingmen in the form of damages for per- sonal injuries, it has fallen far short of the anticipations of its promoters. The amount of labor expended by some of them in securing its passage seems to have been well di- rected, but to have fallen short of their sincere desire to benefit a deserving class of men. In view of the efFurts being made in some of the mining districts to compel tie miners to sign contracts of release, and of the fact that notices were being served upon them to the effect that work upon the old terms would cease upon the 1st of January, 1881, the day when the act went into effect, as well as in view of the negotiations with them com- menced in consequence of the system of intimidation inaug- urated, to which the attention of the government ministers had already been called in Parliament, Mr. Benjamin Pick- ard, the secretary of the West Yorkshire Miners' Associa- tion, which included a large number of men over whom he had a strong influence, wrote to them an earnest letter, urging them upon no consideration whatever to consent to the proposed arrangement, declaring against the amount of litigation apprehended, referring to the manner in which the provisions of the Mines Regulation Act of 1872 were accepted, and avowing that while his constituents had not obtained all which they desired, "they certainly are not about to sell for a mess of pott;ige what they have got." In the same month of December Mr. A. Macdonald, M. P., a leader in the cause, also wrote strongly urging the miners of South Wales to refuse to enter into any such arrange- 114 STATISTICS OF LABOR. mcnt ; and Mr. William Crawford, secretary of tlio larijn association of Durham miners, says in his monthly circular for December: " The act of Parliament has been passed at the special request of the workmen, and for their special protection, and it ought to be allowed to fully operate, irre- spective of any other consequences whatever. To contract out of the act by any system of insurance would be turning all the eflforts put forth, and work done for many years, into a meaningless farce, and expose ourselves to the merited contempt of all right-thinking persons. One great difficulty which presents itself to the owners is the immense costs which will be incurred in the law courts. I have given the matter much thought, and I think that this difficulty can be easily obviated to the satisfaction of all parties . What we must obtain is the unquestioned right of the workmen to claim from owners compensation in case of accidents which mii^ht, or would, by an exerci-se of care and caution on the part of charge men, have been prevented. Any step which leads to a shifting of the personal responsibility of owners for the safety of the men from their 6'wn to the shoulders of insurance companies, is a step in the wrong direction." These may be taken as types of the opinion almost uni- versally prevalent at this time among miners and operatives. In December (1880), the Londim and North Western Kail- way began negotiations with the men in their employ, num- bering over fifty thousand ; and a meeting of more than one thousand of them was held at Crewe to listen to a report from a deputation sent to the directors ; who it appears had found the latter anxious to know whether their employees preferred to accept the act, or a revised scale of insurance. As illustrative of the sentiments which, at this time, seem generally to have prevailed, it may be noted that at this meeting the workmen interrupted the speakers, who were urging the acceptance of the suggestions of the directors, with cries of " Let's have the act ! "and it was resolved at the close of the meeting to settle the question by a ballot. During the next few days various other large meetings of the men, embracing many thousands of them, were held, one at Leicester, one at Wolverton, one at Liverpool, and an- other among the men employed in the company's mines at EMPLOYERS' LIABILITY. 115 "Wigan. The proposal submitted to the men by the directors was as follows : To raise the scale of benefit f(;r those in the first class, who paid 3d. a week, from £40 to £100 in case of death : from £35 to £100 in case of disablement ; and from 18s. to 21s. per week in case of temporary disablement. For those in the second class, who pay 2d. a week, to raise the scale from £35 to £80 in case of death ; from £25 to £80 in case of disablement ; and from 12s. to 14s. per week in case of temporary disablement. And for those in the third class, who pay a penny a week, to raise the benefit from £12 10s. to £4U in case of death ; from £18 15s. to £40 in case of disablement; and from 6s. to 7s. per week in case of tem- porary disablement. lu the collieries of the Earl of Dudley in South Stafford- shire and East Worcestershire, the severe course adopted by him in discharging the surgeons hitherto permanently em- ployed by him to attend to the men injured in his service, and in withdrawing all subscriptions for assistance, together with the sum which it had been his custom to allow for funeral expenses, at first had the effect of provoking the miners to refuse absolutely to sign releases ; but an arrange- ment was afterwards effected. The first case carried to the Court of Queen's Bench was a. suit against him in which damages to the amount of £184 were recovei-ed. In this case the implied effect of the act of a workman in accepting his proposal, by returning to work, was tested. The miners of Fife and Clackmnnnan, the colliers and iron-workers of Thorncliffe, Chapeltown, and many of the miners of South Yorkshire and North Derbyshire, declined to contract out of the act. Among the miners of West Lancashire, Avho had established a permanent relief society, which was in a prosperous condition, was assisting two hun- dred widows and three hundred children, and had an accu- nuilated fmid of £20,000, there was a difference of opinion as to the better course to follow, and a general disposition to accept the terms proposed. In Monmouthshire and South Wales, as well as in South Staffordshire, there was early manifested a like disposition, and permanent relief societies were founded in both districts. As fair a proposal as any was made by the Great Western IIG STATISTICS OF LABOR. Riiilway, which not only offered liberally to increase Iheir subscriptions to the insurance fund, but also (which mani- fested a disposition not to take a'lvantage of their men) to allow them, or their representatives in case of death, six weeks in which to elect whether to accept the provisions of the fund, or to rely upon the provisions of the act. The feeling of mutual confidence existing between the officers and employees of this company, and of the London and North AVcstern, resulted in the acceptance of the proposals finally mnde. Of 30,000 miners, members of the Lancashire and Cheshire Miners' Permanent Relief Society, 20,000 cxprer^sed their willingness to enter into an arrangement, 200 were unwilling^ and 2,000 were willing to act with the majoritj'. In some ci)llieries in ti)e Leigh and Wigan districts, and in Durham, strikes occurred ; the men refused to contract out of the act, !ind passed resolutions requesting Mr. Macdonald to endeav- or to have the act amended by making such a contract in- valid. And in general about all that can be said is, that in some cases where fair and suitable proposa's were made by the employeis, they were accepted, while in others they were not. It mny bo said that usually where large employers of labor did not succeed in securing rele.isos, they resorted to the protection aiforded by the accident insurance companies, who issued whiit are called " floating policies," assuming the ri^k of all damages which the person insured had been obliged to pay. In speaking of the uncertainty which prevailed at the pas- sing of the English act, as to its operation and the number of cases to which it would be applicable, Mr. F. G. P. Neison, a member of the-Londcni Statistical Society, in the discussion wiiich followed the reading of Mr. Walford's paper " On the number of Deaths from Accidents, Negligence, etc., in the United Kingdom" (see Journal of the London Statistical Society, vol. XLIV., part iii., September, 1881), is re- ported as saying : — " At that time a great number of employers were in deadly fear and tremor as to the responsibility which would be placed upon them liy tiie passing of the act; and instructed him to inquire into the matter, to EMPLOYEKS' LIABILITY. 117 ascoi-tain what would be the practieal operation of the bill ; and for tliat purpose he had spofial Cacilities. Well, they naturally thought that if they took the question of mines first, they would undoubtedly be dealing with the most dangerous class of occupation in this country ; and therefore the reports of the inspectors of mines for twenty years were carefully ana- lyzed, and some large colliery accident funds supplied additional infor- mation. To sum up the matter, as far as mines were concerned, he might state that the result arrived at was that the rate of fatal acci- dents among miners might be safely put down at 23 per 10,000. It had, been, some ten or fifteen years ago, as high as 30, but he was glad to notice that each year the rate had been reduced. They next proceeded to the subject of railways, and here he must say they wore obliged to hive recourse to returns oth»r than those of the Board of Trade, which did not take in all the accidents that occurred. Well, the result of their investigations was this, that the rate of accidents was found to depend materially upon the nature of the traffic conducted upon the line. If they took a passenger line, like some of the lines south of London, they found that in the course of the year some 25 out of every 10,000 employees met with fatal accidents. But when thej" went to largo goods traffic lines, like those north of the Thames, the rate ran up to 36 ; so that they were surprised to find that, while the accidents in mines were only 23 in 10,000, in railways, under the most favoraljle circumstances, the rate was 25. Since that inquiry he had had special facilities in con- nection with the large trades union in connection with the railways, and it was found that the facts arrived at were completelj' borne out by the experience of the union. They next proceded to a branch of inquiry not mentioned there that evening. They investigated the returns of the navy for twenty years; and they found, although the rate of accidents in the navy had decreased very considerablj- in the last few years, tak- ing an average of fifteen years, the rate of deaths from violence in that service was 40 in 10,000. In the mercantile marine the rate was astounding. They found there that instead of 40 the deaths were as high as 160. They found one very considerable element to account for this, and that was, that the deaths from shipwreck alone in the mercan- tile marine amounted to 80 in 10,000, which still left 70 due to causes other than shipwreck. Hitherto he had dealt with fatal accidents; but now, as far as nun-fatal accidents were concerned, they found, taking the country as a whole, that about one-fifth of the men employed in and about mines met with an accident of greater or less intensity everj' year. In some mines they found the rate ran up to a half of those they employed. A significant fact in their inquiry was this, that they ascer- tained with regard to the north of England, that when the coal trade was bad, the rate of non-fatal accidents increased wonderfully, and men whose backs were sprained in times of depression, were never heard of in times of prosperity; hut always, when the price of labor went down, the men got their backs sprained with greater intensity." In considering these figures and tbe inimber of railway employees annually killed, which is abotil 2 J in every 10,000 118 STATISTICS OF LABOR. employed on passenger lines, and 36 in eveiy 10,000 employed on lines doing both a passenger and freight busi- ness, it shoidd not be forgotten that these figures do not represent the per cent of employees who can recover dam- ages, because the defence of contributory negligence, as has been seen, greatly reduces this per cent. To increase to a considerable extent the workman's right to recover damages, will it not be necessary to lighten the severity of the rule of contributory negligence? From the estimates already ^given on page 94, it will be seen that in only a small per cent of cases of death or injury can damages be recovered. Mr. Moon, the chairman of the London and North "Western Rail-" waj', in a statement to his employees, put the estimate as low as two per cent. To illustrate: This gieat railway employs over 50,000 men; and, if 23 in every 10,000 are annually killed, the number would amount to 115 persons, of which number six is about five per cent. If these six can each recover £450 as the maximum damages recovera- ble under the act, — which may be called, for the purpose of an estimate, three years' earnings, — the whole amount which for deaths can annually be collected of this railway company is £2,800, about $14,000. If, as stated by Mr. Walford, 12,000 persons are annually killed by violence in Great Britain and Ireland, and, — as all are not killed in dangerous emi)loyments, — say two per cent can recover damages of £300 each, for three years' average earnings, the total amount which would probably be recoverai)le, under this act, for deaths throughout the United Kingdom, would be £72,000, about $360,000. In Massachusetts there were 49 employees killed on the railroads in 1880, and 72 in 1881 ; and if, allowing for the dangerous nature of the employment, in five per cent of the cases damages are recoverable, there would have been less than three cases in 1880, and less than four cases in 1881, of deaths on the railroads for which damages could have been recovered. If $5,000 could be recovered in each case, there would have been $15,000 recoverable in 1880, and $20,000 in 1881. And, in case there were three times as many serious injuries as deaths, — which is twice as liberal a proportion as the returns of the raih-oad companies and the reports of the railroad commissioners indicate, — there were nine EMPLOYEES' LIABILITY. 119 employees injured in 1880, and twelve in 1881, by whom damages were recoverable. If, on an average, $5,000 was recoverable in each case, the amount of damages which could have been collected for all the injuries to employees on all the railroads of this Commonwealth, would have been $45,000 for the year 1880, and $60,000 for the year 1881. Construction of the English Act. — Decisions undee it. Since this act" went into operation, two years ago, several cases have been decided in the English courts, showing the effect of the act, the circumstances to which it is applicable, and the construction that should be put upon some of its various clauses. The defence of common employment has not been abol- ished ; and where the employee who causes and the em- ployee who receives the injury are fellow-servants of the same grade, the liability of the master remains as before. Had it been intended to abolish this defence in all cases, it might have been done bv a single sentence, without specifying in sub-sections the classes of cases to which it should be no longer applicable. In Harrington v. Wes- thorp,* it was held that a stevedore who, while stowing a cargo, was struck by a bale of goods, and injured through the negligence of another person engaged in manual labor, could not recover damages of their common employer. See also Robins v. Cubitt.-f The act has made employers liable to workmen for the negligence of persons in authority over them, on the theory that the injury results from obedience to the orders of the employer or his agent ; but it has not extended the liability to the acts of fellow-laborers of the same grade, not commissioned with authority over the per- son injured. A husband is liable for the act of his wife, through whose negligence an injury is caused, because she is his agent, and her act is his act if and a volunteer working without pay or reward is in no better position for recovering dam- ages than a hired servant ;§ a corporation is liable to its employees for the negligence of its manager or superintend- ent, who is their servant, and intrusted as their agent with • L. T., March 11, 1882. t46 L. T. Hep. (N. S.) 535. X Miell V. English, 15 L. T. 249. § Degg v. Midland R'y Co. 26 L. J. Ex. 171. a For full text see Appendix A. 120 STATISTICS OF LABOR. their authoiily ; and is also liable for the acts and resolu- tions of its directors, if within the scope of the authority vested in the corporation by its charter, because thoy are the acts and resolutions of the corporation itself;* and all the members of a partnership are liable to its servant for the negligence of one of the partners,! although they are not liable to one of their servants for the negligence of another servant of the same grade and without authority over the person injured. Under the partial definition of common employment as an employment where the pei'son injured and the person doing the injury are at work to accomplish one and the same ultimate object, are at work for the same master, and derive their authority from the same source, J the master cannot be held liable for negligence except he was so liable before the act was passed, or has been made specifically liable by the first and second sections of the act. It is still a defence when not in the act specifi- cally declared otherwise. None of the duties Avhich, before the act went into effect, the master owed to his servant, have been changed : the duty of exercising due care (1) whenever he personally superintends or engages in the w()rk;§ (2) of exercis- ing duo care in the selection and employment of proper and competent servants, in order that each one of them may not be exposed to extraordinary risks by the negligence of unfit fellow-servants ; II (3) in providing and maintaining proper materials, tools, implements, machinery and plant,** ■which duty does not, however, amount to a warranty that they are absolutely fit for the purpose for which they are used, and free from all defects; (4) in carrying on his work or business under a safe and proper system of regula- tions ;jt (5) in conforming to any statutory regulations ■which have been prescribed by the legislature, as regulations in relation to the erection of fire-escapes on factory build- ings. But, while these duties remain the same, other addi- * Hough V. Railway Co., 100 U. S. 213-218. + Ashworth v. Stanwix, 30 L. J. Q. B. 183. J Farwell v. B. & W. R. Co. 4 Met. 49, cited in 3 Macq. 316. § Roberts v. Smith, 26 L. J. Ex. 319. II Wilson V. Merry, L. R. 1 Sco.ch App. 326-332. ** 3 Macq. 266, 288. tt Sword V. Cameron, 1 D. 493 ; see 3 Macq. 266,289. EMPLOYERS' LIABILITY, 121 liimal duties have been imposed by ll}e addition of other liabilities, and the increase of the number of remedies. The act is designed to extend benefits to persons engaged in physical and manual labor, and affords no additional pro- tection to persons engaged in intellectual pursuits, to per- sons who may be said to work with their heads, instead of their hands. The first section begins with these words : "Where, after the comnienuenient of this act, personal injury is caused to a workman ;" and workman is defined by the eighth section to mean "a railway servant and any person to whom the Employers' and Workmen's Act (187f)) applies." By this act of 1875 the term " workman " " means any person who, being a laborer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labor, whether xnider the age of twenty- one or above that age, has entered into or works under a I'ontract with an employer, whether the contract ... be expressed or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labor ;" but it does not include a domestic or menial ser- vant. It is also enacted by section 13 that the term shall not include seamen or apprentices to the sea ; and by section 12, that it shall apply only to an apprentice to the business of a workman, as that term has already I)een used, upon whose binding to apprenticeship no premium is paid in excess of £25 ; or to an apprentice who is bound under the provisions of the act which relates to the relief of the poor. It does not include workmen in the employ of the govern- ment, — workmen engaged in the royal dock-yards, — be- cause an act does not apply to the crown without an express provision to that effect. The compensation awarded is not intended to be exemplary damages, nor an absolute rcmun- eiation for pecuniary loss, but what, under all the circum- stances, is a reasonably fair compensation ; and any sum recovered by suit, or accepted on agreement, is a bar to an action afterwards brought by the representatives of the per- son injured. Various decisions have been made under the first and second sections, as to what are the circumstances under which the right to compensation exists ; but it can never 122 STATIStlCS OF LABOR. exist where the injury is too remotely the result of the act, complained of. Upon this subject Baron Pollock, in Rigby V. Hewitt,* says: "Every person who does a wrong is at least responsible for all the mischievous consequences t/iai may reasonabli/ be expected to result under ordinary circum- stances from such ndsconduct." By the terms of the act, " the workman, or, in case the injury results in his death, the legal personal representatives of the workman, and any person entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor ia the service of the employer, nor engaged in his work." That the workman can contract out of the act is no longer doubtful, unless the House of Lords should reverse the de- cision of the Court of Queen's Bench in the case of Griffiths V. the Earl of Dudley. f Soon after the passage of the act, the attorney general and. several leading solicitors expressed the opinion that there was no i-estriction upon the right of contract ; and in con- sequence the Earl of Dudley, among oilier large employers of labor, notified the miners in his collieries on the first of January, 1881, the day the act went into operation, that they must, if they continued to work, waive the benefits of the act. " Conditions of employment," so called, were cir- culated through the collieries, containing stipulations, — " that the persons employed at the colliery must be, and continue to be, during such employment, ordinary members of the colliery club or Permanent Relief Society, under its then present or any future name ; that the employer should be, and continue to be, au honorary member of the society,: and should subscribe thereto not less than theretofore ; that, in consideration of such payment by the employer, and on being employed at the colliery, and as part of the terms of employment, every person so employed undertook for him- self and his representatives, and any person entitled in case of his death, to look to the funds of the society alone under the rules and constitution thereof for compensation in case of injury sustained in such employment, whether resulting ia death or not ; and that neither the employer, nor any * 5 Exch. 243. t L. R. 9 Q. B. D. 357. EMPLOYEES' LIABILITY. J 23 other person in his employment, whether a fellow-servant or not, should be liable in respect of any defect, negligence, net or omission under the Emploj-ers' Liability Act, 1880, or otherwise, or in respect of any negligence occasioning such injury ; that the contract should remain in force and operate as a contract between the workman and the owner for the time being of the colliery, so long as the workmen continued ■ to be employed at the colliery." This document was also posted in the hovels of the workmen, and in conspicuous places throughout the collieries. Upon a suit brought in the Dudley County Court, and carried to the Queen's Bench, by the widow of one GriiBths, a workman killed in the pit-shaft through the negligence of iin inspector of machinery, it was held by the Queen's Bench that such a contract was not against public policy ; that the workman could and did contract himself out of the act, and could and did bind his widow and legal representatives by such a contract. The effect of the act was simply to nega- tive the implication of an agreement by the workman in the contract of service, and in this way to render his contract not to claim compensation invalid ; but the implication was overcome by an express contract of release. Under the first sub-sections of the first and second sections which cover injuries caused " by reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the service of the employer," if the defect "arose from or had not been discovered or remedied owing to the negligence (1) of the employer, or (2) of some person in the service of the employer, entrusted by him with the duty of seeing that the ways, works, machinery or plant were in l)roper condition," the term " ways" may be taken to mean the streets, lanes, passages or approaches leading to and con- nected with the employer's business or place of business. In ElheringI on z;. Harrison (L. T. Dec. 31, 1881), and in Huxam V. Thorns (L.T.Jan. 28, 1882, Q. B. D.), it was decided that a plank " run " or " gang- way " leading from one building to another, and in Moore v. Shaw (L. T. Nov. 20, 1 882, Q. B.D.) that a scaffold erected for the use of workmen in building a church, was a " way; " but it had before been held not to apply to a tramway which rests upon the soil without being 1-2 i STATISTICS OF LABOR. affixed to it.* "Plant" is a genertil term, used more es- pecially ill England, and includes tools, implements, machin- ery, rolling-stock, fixtures, apparatus, or appliances ordinarily used in carrying on any trade, manufacture, or business. f These clauses do not ^impose an oblig ition of absolute war- rant// ov i)i«M/'«7(ce against defects. In L;ingham v. Y(jung,J decided in the Westminister County Court, it was held that (hoy did not impose a warranty against latent defects, which decision was affirmed in Whittaker v. Balmforth,§ although in this case the employer was held liable for his foreman's negligence in selecting an eye-bolt. Neither do they impose a warranty that the machinciy is as safe an possible against accidents, and adapted to prevent every 2)ossible careless- ness. 11 The second sub-section applies to " the negligence of any person in the service of the employer who has any superin- tendence intrusted to him, whilst in the exercise of such superintendence." The meaning of the words, " in the ser- vice of the employer " depends ufxni the relations existing between the master and servant, the characteristics of which relationship are (1) a hiring, together with the several rights of (2) direction, and control, and (3) dismissal (4) njion payment of wages.** The injury must have occurred dur- ing the exercise of this superintendenc}', although in point of time it mny have happened after the siiperintendency had ceased . 1 1 The third sub-section applies to the negligence " of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed." An " order" has been called negligent when the acts which, in discharge, of the order, it is reasonably necessary for the workman to do, involve ex- traordinary risk; as, for instance, to use a hand crane for the purpose of moving a wheelbarrrow of sand, when the sand » Beaufort (Duke of) v. Bates, 3 D. F. J. 381, s. c. 31 L. J. Ch. 481. t See Wharton's Law Lexicon. + Law Times, July 30, 1881. § Law Times, Sept. 10, 1881. II Robins v. Culiitt, L. T. R. (N. S.) 535 s. c. L. R. Q. B. D. •• McGinn v. Pilling, L. T. Dec. 31, 1881. ft Owen ti. Maudslay, L. T. Nov. 19, 1881 ; Q. B. D. Feb. IS, 1882. e EMPLOYERS' LIABILITY. 125 might instead have been carried by spadefuls.* But if there is no necjligcncc attributable to the worliman who ijave the order, and the accident occurred without ncffliiience on the part of any one, the master will not be liable ; and where a workman was assisting, under the diiection of the fore- man, in raising a steam engine, and when it had been raised several inches, the foreman let go for the purpose of putting a brick under it, thereby causing the engine to fall and crush tlie workman's fingers, it was held that the " order" was not negligent. -f The fourth sub-section of section 1, and the second sub- section of section 2, relate to an act or omission " done or made in obedience to (1) the rides or by-laws, or in obedi- ence (2) to particidar instructions given to any person dele- gated with the authority of the employer in that behalf," provided "the injury resulted from some impropriety or defect in the rides, by-laws or instructions therein men- tioned." These clauses amount to an absolute warranty that the rules and by-laws shall be free from " im|)roprieties" and " defects," and make the employer responsible for the injury caused by the act of any workman of any grade which results from his execution of such an order. An " impro- priety " in a rule may be defined to be an unfitness in the method prescribed to accomplish the purpose intended, — unfitness either in the manner in which the purpose shall be accomplished, in the time or place at which it shall be done, or the circumstances which shall attend its accomplishment; and "defect" may be defined to include any neglect or omission in the rule to provide for the accomplishment of the purpose intended. There is nothing in the act which makes it necessary that the rule should be in writing, although the term "by-laws" may have been intended to mean a written rule. The further provision allowing a rule or by-law, which has been approved or accepted by certain public officeis, to be considered free from improprieties or defects, is similar to provisions in the Petroleum Act of 1871, the Mines Bogulation Act of 1872, the Explosives Act of 1875, and the Alkali Act of 1881. • Laming v. Wehh, L. T. Feb. 4, 1882. t McManus r. Uay, 19 S. L. R. 345. 12G STATISTICS OF LABOR. Sub-section five, which relates to " the negligence of any purson in the service of the employer, wlio h;is the charge or control of any signal, points, locomotive engine, or train iipon a railway," extends to niilwiiy companies a wider lia- bility than is imposed upon other cmployeis, because of the peculiarly dangerous risk attending this employment, upon the safe conduct of which the security of travellers so much depends, and because of the nnu^uiil difficulty of making it sure that railroads mny not escjipe liability through the variety of dissimilar occupations in this employment. The framers of the act found this section, not included in the original bill, absolutely essential to the accomplishment of their purposes ; and it is quite likely that this is the only section of an}' special value to the persons intended to be benefitted. The terms " chiirge or control "are important words in the clause ; and in Haysler v. Great Western Rail- way Co.* the question as to the extent of their meaning was raised, and they were given, for the purposes of the case, a construction sufficiently broad to allow two persons at the same time to be in charge and control of an engine. The same words were also under consideration in Cox v. The Great Western Railway Co.,| where a " capstan-man" in the employ of the company, engaged in propelling a series of trucks along a line of rails for the conveyance of goods and freight, injured a fellow-employee engaged at the time in a similar occupation at the other end of the line, and about one hundred yards off. The motion was given to the trucks from a capstan moved by hydraulic power from a sta- tionary engine. The questions of fact were allowed by the court to be left to the jury, — (1) whether the "capstan- man " had the charge or control of a train upon a railway, and (2) whether he was negligent; and both were answered in the affirmative. This case also decides that a series of trucks (twelve trucks in this case), laden with goods instead of passengers, constitutes a "train upon a railway;" and perhaps the further question that the act applies to station- ary or traction engines. Under section 7, which provides that " a notice in re- *L. T. Deo. 17, 1831; Q. B. D. Dec. 10, 1881. tL. R. 9, Q. B. D. 106. EMPLOYERS' LIABILITY. 127 spect of an injury under this act slmll give the name and address of the person iujured, and shall state in ordinary language the cause of the injury, and the diite at which it was sustained," it was held in Stone v. Hyde,* that the notice shall not be expressed in technical language with the particularity of a statement of claim ; that a statement, in ordinary language, of the name and address of the person injured, with the cause and date of the injury, was sufficient. This notice, it is apparent from the context, must be in writing ; a verbal notice cannot be served on the defendant, as the section further prescribes. f It need not be given by the person injured, but may be given by his solicitor, or perhaps by any person, in behalf of the workman, who has knowledge or information of the injury ; and it is thought that it may even be contained in more than one letter or document. J And by the same section it is also pro- vided that any defect or inaccuracy shall not render the notice invalid, unless the defence is prejudiced thereby, or there was an intention to mislead. | The defence of contributory ner£ligence remains unchanged by the act. In the original bill it was provided, at the end of the tirst section, " that this section shall not apply where the workman injured materially contributed by his own nefflijrence to the cause of his injury." This clause would have mitigated somewhat the severity of the rule of con- tributory negligence, the application of which prevented the person injured, in ninety-five cases out of a hundred, as has been seen, from recovering damages, by allowing him to recover damages where his negligence had not con- tributed materially to the injury. But in the process of revising the bill, under the supervision of able counsel, in order to make it conform more completely to the interests of employers, this clause was stricken out, and thus the work was finished of making the bill what may now, with propriety, be called a sham reform. The term " contributory negligence," which is used to designate this doctrine, is likely to mislead, because it seems » 46 L. T. R. (N. S.) 421. t Moyle V. Jenkins, L. T. Dec. 16, 1881 ; 51 L. J. Q. B. 112. : Keene v. Millwall Dock Company, 46 L. T. E. (N. S.) 472. 128 STATISTICS OF LABOR. to indicate that the person injured cannot recover where he, by his negligence, consented or contributed to the injuiy. 15ut when more carefully expressed in ordinary language, the rule is that the person injured cannot recover damages, when, however negligent the other party might have been, the injury might have been prevented by the exercise of ordinary care on his part, — of such care as a reasonably prudent man of ordinary intelligence would have exercised under like circumstances. It may be true that the negli- gence of the other was of the grossest kind ; but, when it is equally true that the injury might have been prevented by the exercise of ordinary care, the law says that the neg- ligence of the other would have done no injury without the negligence of the person injured; and says, furthermore, that the burden of proof shall rest upon the latter; and, because he is the plaintiff, he shall show by a reasonable preponderance of evidence, that he was in the exercise of ordinary care, and the injury is in no degree attributable to the want, on his part, of such care.* If a railway train should pass a station without giving warning of its approach by whistling, and a person crossing the track without look- ing for the approach of a train should be injured, he would be guilty of contributory negligence, f If the proprietor of a colliery should for weeks allow a statutory special rule, requiring the hoisting ropes to be examined everyday, to be disregarded, and in consequence of this violation a workman should be injured who himself neglected upon Ibis notice to examine the rope after a fire had occurred in the mine, he would bo guilty of contributory negligence. | In the application of this rule its hardship becomes more manifest because it is applied by jurors, in the calmness of a court room, upon evidence submitted' after the act has resulted in an injury, and argued upon by counsel able to point out some way in which the injury might possibly have been avoided. While the doctrine of contributory negli- gence in all its severity remains unchanged, § another clause • The Margaret, L. K. 6, P. T>. 76 ; Horton v. Ipswich, 12 Cush. 488. t Slattery v. D. W. & W. R. Co. 3 App. cases 1155. + Senior v. Ward, 28 L. J., Q. B. 139. § See Pitman v. Bennett, L. T., February 25, 1882. EMPLOYERS' LIABILITY. 139 of the net defines a failure to give notice of a known defect or neglect to be such an omission as is equivalent to contributory negligence. Sub-section three of section 2 sajs, "No right to compensation shall exist in any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the em- ployer, or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence." This, Avithout doubt, places upon the person suing an obligation to give notice of any defect known to him, and to prove at the trial that he has not violated that obligation. The information must relate to the defect which caused the injury ; and, when the notice has been given to the employer or any superior servant, the workman cannot be accused of contributory negligence. Should he, however, continue in the service, and receive injury from this defect or any othir neglect complained of, there is nothing in the act to prevent the use of the defence tliat he thereby consented to take the risk of the defect or neglect. Attention has already l)een called to the fact that only partially has the defence of common employment been abolished, and that little more has been .done in this direction than to make the emploj'cr liable for the negligence of a person entrusted with superintendency or with superior authority. " At the time of the pnssing of the act, the law stood thus," siiys Mr. Justice Field, in the case of Griffiths V. the Earl of Dudley:* " It was an implied term of the contract between employer and workman, that the latter should not recover damages i( he was injured by the negli- gence of a person in the common employment." And if, he continues, the effect of section 1 is to do away with this iin- 1)1 ied term, the contract of service, upon which both rely, is likewise done away with, and there is no contract left by virtue of which any right of action exii-ts ; and, moreover, the workman becomes a trespasser upon the employer's premises. The cases of Priestly v. Fowler, -f of Farwell v. the Boston & Worcester Rail road, J and of the Bartonshill • L. B. 9 Q. B. D. 337, 363. t 3 M. & W. 1. J 4 Met. 49. 130 , STATISTICS OF LABOR. C(ial Co. V. Roid,* already cited several times, established this doctrine of implied contract, and the common employ- nient incident thereto, which was carried so far in Wilson v. Merry as to excuse an employer from all liability for the negligence of his foreman or superintendent. And the act seems only to have gone so far as to change the rule of Wilson V. Merry, and leave the principle of implied con- tract and common employment as it was laid down in these eailier cases. No consideration of the operation of the act would be of much value which failed to nnnlion the relief afforded the employers by the aid of insurance. Two courses were open to them ; either, first, to m:ike their contriijutions to the in- surance and protective funds large enough to induce their workmen to contract out of the act; or, second, to submit to its terms, and, by obtaining floating policies in aciident insurance companies, to make the burden as light as pos- sible. It was soon found that by the payment of almost nominal rates, general floating policies could be obtained ; and that those employers who did not succeed upon payment of small contributions to the funds in avoiding the provisions of the act, might safely submit with little fear of the ruin and baukrujjtcy so foolishly apprehended. The lamentable ignorance which prevailed two or throe years ago, as to the amouuit of damages recoverable, was dispelled only when soime persons, first among whom were the accident insurance eompimies, made a careful collection of the facts and statistics ina'elation to vi.ilent deaths and injuries, and there- from estimated the proportion of deaths and injuries prob- ably .resulting from coutril)utory negligence. When it was found haw very small a proportion was left, for which in each case the maximum rate of damages was only about £225, the employers must have laughed at the obstacles which they ibund existed only in their imagination, and the friends of the reform must have felt that they had gained a hollow victory. For oven this slight liability the employer has a remedy, sometimes perhaps of little value, against the per- son by whose negligence he has been compelled to pay damages to his workman ; and even when this liability has • 3 Macq. 266, 283. EMPLOYEES' LIABILITY. 131 been assumed for him by some accident insurance company, the latter, upon payment of the loss, has, by what is called the right of subrogation, the privilege of prosecuting the remedy in his name. Decisions in County Courts under the English Act. The county courts have, under section 6, original juris- diction of all actions under the act, subject to removal to a superior court, in like manner and upon the same conditions as other actions begun in the county courts. While the decisions of these courts are not of like character with those of ihe higher courts, some of them at least are worthy of grave considei'ation, as they are rendered by lawyers of the rank of Queen's counsel, appointed to try questions of fact with the aid of a jury. All the decisions under the act of the higher courts have, it is believed, been referred to, and, unless some oversight has occurred, all the decisions of the county courts made between November, 1881, when the act may be said to have been fairly in operation, and the present time (December, 1882), have been digested here. In the absence of opinions by judges of appellate courts, they are of peculiar importance, as the only judicial construction placed upon the act. Wai/s, Works, etc. — Topham v. Goodwin, Law Times, Nov. 5, 1881; section 2, sub-section 1, and section 2, sub- section 3. The question was, whether a certain form of machinery (viz., a loose pulley or some other proper means of throwing a saw out of gear) rendered it defective within the meaning of this section. The court decided in favor of the defendant. Etherington v. Harrison, L. T., Dec. 31, 1881, section 1, was decided by the jury in favor of the plaintiff on a ques- tion of fact, whether a loose plank in a scaffolding was such a defect in the " ways and works" used by the defendant in his business as to make him responsible, upon its being brought to his notice, for an injury sustained through the plank ttdling down upon the plaintiff. Huxam v. Thoms, L. T., Q. B. D., Jan. 28, 1882, sec- tion 1. A scaffold is part of the ways and works. The 132 STATISTICS OF LABOR. plaintiff fell off the scaffold. It was held that there was evi- dence on the part of defendant, suflScient to make him liable under section I. Smith V. Lafons, L. T., July 22, section 1, sub-section 1. The plaintiff, in the course of employment, was standing on a bridge owned by the defendant, which overtopped a public road, and while there standing was knocked over by a team attempting to pass underneath it, causing the injury for which he sued. The driver of the team was ordered to go ahead by a policeman in the employ of the defendant. It appeared also that the bridge was insecurely fastened to the walls on either side. The defendant was held liable, under section 1, sub-section 1, for a defect in ways, works, etc. Batchelor v. Tilbury, et al., L. T., Aug. 12, 1882, section 1, sub-section 1. Plaintiff was a "bricklayer's laborer." Defendants were in partnership as builders. Plaintiff sued for injuries caused, while in their employ, by the " fall of a scaf- fold placed on joists supported on a quartering sustained by 'corbels.'" The corbels in this case were flat iron plates, " without any turn-up at the ends or sides," and used for the purpose of insertion in the wall. The wall which was being built Avas a party wall between two houses. One of the cor- bels had to be removed, as it crossed a chimney or flue ; and it was owing to the careless manner in which this corbel was reset by one of the bricklayers, that the scaffolding fell and ■injured the plaintiff. It -was held that " scaffolding was no doubt part of the works in building ; and the works should be sufficiently supported and firm while in use, to insure safety to the workmen employed in the work, that they might go about their work with a free mind and ready will ; " and judgment was accordingly given for the plaintiff, who was held to have exercised due care under the circumstances. Franks v. the India Rubber, etc., Co., L. T., Oct. 7, 1882, section 2, sub-section 1. The plaintiff, while engaged in operating a cutting-machine, was standing on some loose planks, which, slipping from under him, threw him on to the machine, and caused the injury for which he sued. It was held that this was not a defect in the "plant" within the meaning of the act, and, even if it were, that the de- fendants could not have been held liable, as it was not shown EMPLOYERS' LIABILITY. 133 that the defect had arisen "or had not been discovered" through his negligence or that of his superintendent. Notice {defective). Service, etc. — Moyle v. Jenkins, L. T., Dec. 16, 1881. This case involved the question of giving notice. It was decided that it must be in writins', all the judges intimating, however, that perhaps the act might be improved by amendment in that respect. Adams v. Nightingale, L. T., Dec. 24, 1881, sections 4 and 7. It was held tliat " notice of injury, left after busi- ness hours, under certain circumstances was insufficient." In this case, one copy of the notice was left at a late hour in the afternoon (five minutes to six) with a little boj' from five to seven years old, son of the foreman ; while another was left at the same hour in a little wooden house belonging to the foreman, where he paid off his laborers. Still a third was left with a laborer on the premises at 5.30 o'clock. The same case was decided in the Queen's Bench, April 15, 1882. It was held, in this court, that " a notice under the act must be served in such a manner that it is reasonable to expect that it will come to the defendant's knowledge in the ordinary course of business ; " and further, that ' ' the de- fendant's knowledge of the injury suffered by the plaintiff, within six weeks, did not cure any informality with regard to the notice." Hunter w. Dickinson, L. T., March 25, 1882. This was a case of defective notice. The court, in commenting upon the latter part of the seventh section, is reported as saying that an error inadvertently made in giving notice, as a wrong date, etc., might be amended; but, where there was no statement at all of how the injury happened, except the words "in consequence of certain defective arrangements," it could not be said that any notice had been given. ■Macey v. Hodson et al., L. T., Dec. 24, 1881, This case involved the question of waiver of notice. It was held that the fact that one of the defendants promised on three sepa- rate occasions to compensate the plaintiff, was not " ' a rea- sonable excuse' for the want of notice." Franks v. Silver & Co., L. T., May 27, 1882, section 4, County Court rules, 1880, rule 3. This is the same case as 131 STATISTICS OF LABOR. Franks v. India Rubber Co. {ante, p. 132) . It was held that, where a notice under section 4 merely stated that the injury was caused " in consequence of being directed to stand upon a loose board in running water," and the bill of particulars, required by the county court rules (rule 3) to be attached to the summons, stated that it was the result of a " defect in the condition of the ways,- works, machinery or plant con- nected with or used in the business of the employers," the plaintiff had not fulfilled the requirements of the act. Who is a Contractor? — McGinn v. Pilling & Co., L. T., Dec, 31, 1881, sections 1, 2, and 8, and sub-sections thereof. Where the plaintiff was injured by the negligence of a sub-contractor, in whose employ he was at the time, it was held that, under a strict construction of the word " em- ployer," as contained in the sub-sections of section 1, the defendants were not liable, as the plaintiff was not employed by them. In this case all the materials for the work were furnished by the defendants, and the sub-contractor who hired the plaintiff was a man of no substance, having, it ap- pears, just come out of the workhouse. Harrison v. Dawson, L. T., Oct. 14, 1882, section 8. "The plaintiff was employed by the defendant to take a barge "to a dock and unload it. "In pushing the barge from its moorings," he " stepped on a carliug or beam" used to support some boards, some of which proved to be rotten, and others had been taken away. The ' ' carling " went from under him, and he was precipitated into the hold, breaking his leg by the fall. The plaintiff received a stipulated amount for his services, having the liberty to employ help if he saw fit. He did, as a matter of fact, employ others. It was held that, under these circumstances, a "lighter man" was a contractor, " and not a workman, within the act." Negligent Order. — Haysler v. the Great Western Railway Company, L. T., Dec. 17, 1881, section 1. The plaintiff, while in the course of his employment of tending an engine, was injured through the negligence of an engineer or fireman in the employ of the company. The court declined to express an opinion as to who was ' ' in charge " of the engine, but EMPLOYERS' LIABILITY. ]3.i decided that there was evidence sufSeient, on the whole, to give judgment for plaintiff, and accordingly decided in his favor. Hatfield V. Enthoven, L. T., Dec. 31, 1881, section 1, sub-section 1. (Discretion allowed workmen in obeying a negligent order.) This case involved a question of " some nicety " as to whether it was within the scope of employment to perform a certain act (viz., removing a crane) whi(-h caused an injury to plaintiff, and which it was necessary for him to perform before he could obey orders. The court, ' ' although with some doubt " as to the fact in this particular case, decided in favor of the plaintiff. Laming v. Webb, L. T., Feb. 4, 1882, section 1. Held, that it was evidence of negligence, sufiicient to create liability, to order a minor to alter some machinery while it was in motion. In Smith v. Laf ms, before quoted, the defendant was held liable, under section 1, sub-section 2, "with some doubt," for the negligence of one entrusted with superintendence. Harrington v. Westhorp, L. T., March 11, 1882, section 1, sub-section 3. An employer is not liable for negligence of manual laborer. Admitting tlmt the defendants were negli- gent in this case, contrary to the finding of the jury, still semble tiie defendants would not be liable, as the act which is alleged to have caused the injury was done by one who was only temporarily acting as foreman, " but whose usual duties were those of manual labor." . Boutwright v. Downing, L. T. , Aug. 15, 1882, section 1, sub-sections 2 and 3. A person engaged in manual labor is not a superior workman. A person ordinarily engaged in manual labor, whose order, as to how a pole should be used in raising a beam, the person injured obeys, is not a supe- rior workman or a superintendent under sub-sections 2 and 3 of section 1. The plaintiff was directed by the foreman of the defendant to obey the orders of E, an under foreman ; E directed him to assist two manual laborers in raising a beam by the aid of a pole. The injury was caused by the unskil- fulness and want of proper judgment of plaintiff and E in putting up the pole. As E was an ordinary foreman, and usually engaged in manual labor, it was held that he was not 136 STATISTICS OF LABOR. a p3rsoii for whose acts the employer was liable, as one in- trusted with superintendence, or as a superior workman, under sub-sections 2 and 3 of section 1. This case is not quite so strong as Harrington v. Westhorp {ante, p. 135), because here the person who caused the injury was not only ordinarily engaged in manual labor, but also had no authority whatsoever to superintend the particular work in question. Owens V. Maudsley& Co.,L. T., Nov. 19, 1881, section 1. This case turned on the question whether the under foreman of the company was negligent. The jury fouud that there was negligence in not turning a boiler-plate in such a man- ner as to make it safe to remove a boiler, and held the com- pany liable. The appeal to the Queen's Bench was after- wards dismissed, and the judgment sustained. Trivett v. Midland Railway Company, L. T. , June 3, 1882, section 1, sub-sections 2 and 3. The plaintiif, while at work on one of the company's engines under the orders of a foreman, was injured through the negligence of a supei'in- tendcnt in giving an order for reversing the engine Avithout previously warning the plaintiflf, according to the rule of the company, whereby the plaintiff was injured. Clowes V. the Atlantic Patent Fuel Company, L. T., Oct. 28, 1882, si ction 1, sub-section 5. The plaintiff was em- ployed by the dcfi'ndant as " handy" man, his duties being simply to obey orders. While obeying the orders of a fore- man, or superior woi kman in the employ of the company, who directed him to sand the rails so as to give the engine a better start, the engine was suddenly set in motion, with- out any warning, as was the custom in such cases, and caused the injury for which this suit was brought. The court held that the company was liable for the negligence of its driver in starting the engine without warning, under sec- tion 1, sub-section 5, which makes the master liable for the negligence of a workman in the management of a locomotive. Contributor^/ Negligence. — Pitman v. Bennett, L. T., Feb. 25, 1882. It was held that contributory negligence was a defence, except where the employer or his superintend- ent have notice of a defect within the meaning of the third exception in section 2, which obliges a workman to give EMPLOYERS' LIABILITY. 137 notice to his employer, or some superior person, of the defect, if known to iiim, which caused the injury. Warren v. "Bates, L. T., Oct. 14, 1882, section 1, sub-sec- tion 1, and section 2, sub-section 1. " The plaintiff, being in charge of an engine and boiler at the defendant's mill, improperly placed heavy weights upon the safety-valve ; and, although he was aware that the gauge-glass was out of order, owing to there being a quantity of mud in the boiler, failed to try the test-taps attached to the boiler for the pur- pose of ascertaining the amount of water in it. The plain- tiff having been injured by the boiler exploding : Held, that the above facts constituted contributory negligence on the part of the plaintiff, and that he was therefore not enti- tled to recover, imder section 1, sub-section 1, and section 2, sub-section 1 , notwithstanding that the boiler was in a defec- tive condition from want of cleaning, owing to the negligence of the defendant's foreman." In Topham v. Goodwin, above cited, the question whether there was any contributory negligence on the part of the plaintiff (a minor), in handling machinery while it was in motion, w^as decided in favor of the defendant. Adual Employment necessary. — Lovell v. Charrington, L. T., March, 1882. It was held that the act did not apply in this case, as it was proved, as matter of fact, that the phiintiff was not in the employ of the defendant at the time the injury occurred. Employee's Right to Contract himself out of the Act ; Widow and Legal Representatives deprived of any Claim for Damages. — Griffiths v. Lord Dudley, L. T., June 3, 1882, Q. B. D. It was held that, even if the employee could contract himself out of the act, ' ' yet he could not contract to deprive his widow or other personal representative of the benefit of that statute." (On a rule nisi granted to show cause, etc., this decision was afterwards over-ruled, the court holding that under such a contract his legal represen- tatives would be cut off from all right of action.) 138 STATISTICS OF LABOR. What is riant 9 — Banks v. Murrell, L. T., June 17, 1882, section 1, sub-section 1. The plaintiff, while at work filling coal bins for the defendant, was injured through the giving way of a defective partition in one of the bins. It was held that this was a defect in the " plant,'' for which the company were liable under sub-section I of section 1, which makes them responsible without being notified of any defect. Compensation. — Amount of compensation for injuries to be recovered by an " army reserve pensioner." Bolton V. Midland Eailway Company, L. T., July 8, 1882, section 3. The plaintiff, who was on the " reserve list," and entitled to a pension of sixpence per day, sued the company for extra compensation on account of the loss of his pension through injuries sustained by the negligence of a superior workman in the company's employ. It was held that he was entitled to damages under section 3, allowing a sum not exceeding the e^timsited earnings of three years ; but it does not appear distinctly whether the loss of his pension should be included in the compensation awarded. Discussion of the Subject in This Country. This subject has for years attracted the attention of law- yers, Avho in their professional practice have abundant opportunity of seeing the hardship and misery caused by the unjust distinction made between the liability of employ- ers to third persons and to their employees. It is of fre- quent occurrence to hi-ar or read of an instance where a corporation which is answerable for an injury to one of its workmen at the bar of conscience and of public opinion, is released from liability at the bar of what is called justice. A single instance will illustrate the hardship of the rule. An Italian, just landed in this country, ignorant of its lan- guage and its people, was hired to shovel gravel on one of our railroads by a sub-contractor of the company. He worked at loading and unloading a gravel train with a gang of men, two of whom were assigned to each car. He worked, with another laborer, on the last car. The train had been loaded, and was backing down, over a temporary, poorly-laid track, to be unloaded, which was done by dump- EMPLOYERS' LIABILITY. 139 ing or upsetting the car. The train had backed down, and had stopped, as he supposed, at the place wliere his car was to be dumped; and he, with the others, had got up from the gravel where they had been sitting, when the engineer gave the train a sudden jerk forward, in order to get headway for the purpose of backing still further. The Italian was thrown off backwards under the wheels, run over, and seriously injured. Upon a suit for damages, it was proved at the trial that, although the railroad company owned the engine, and the engineer who caused the injury was in their employ, the engine, and with it the engineer, was let fo the sub-contractor, to work under his direction and control ; and therefore, under the rule of common employment, the engineer and the Italian were fellow-employees for the sub- contractor. The poor fellow, who could recover no dam- ages, had no money, was unable to work, was a ciipple for life, and shortly afterwards became an inmate of one of the State almshouses. It may be said that he ought to have sat still on the top of the gravel until the train had finally stopped ; and that by getting up he was guilty of contributory negligence. But this was a fact for the jury to pass upon, which they were prevented from considering by the application of the rule of common employment. It may be said that, admit- ting: the ensfineerto have been careless, while the laborer was not, the company ought not to be held responsible for his carelessness, because it had done its best to employ a com- petent min. But, even if it had done its best, the law, whethei; justly or unjustly, has for centuries made every company, every partnership, corjjoration, or individual, responsible for contributory negligence to every other per- son who is thereby injured, except to its own employee. Why should the law make an exception in the case of an employee ? This question has been often asked by lawyers and others, and the conventional answer given is, that the employee agrees to take the risk of the employment, and is paid for taking it. That he is paid for taking the risk is proved to be a mistake by a comparison of the rate of wages paid employees in dangerous employments with the wages paid 140 STATISTICS OF LABOR. men of like capacity in other employments. On the othei hiuid, that he agrees to take the risk is proved by saying that the courts have made for him an implied contract to this effect. To which it is answered that the laborer, while denying that the courts ever had a right to make for him such a contract, denies further their right to imply such a contract any longer, in the face of his express denial that he agrees or will submit to such a contract. No court can imply a contract contrary to the express desire of one of the persons made a party to it. While there may have been among lawyers and others a difference of oioinion as to the justice in all cases, or wisdom, of a general change of the law, the hardship of compelling the workman to endure in silence an injury caused by another workman acting in strict obedience to the authority conferred upon him by their employer, has generally been recognized, although of late but little discussed in the courts, because the rule of common employment has become so strongly established as to make exception to it of no avail. When, however, inconsequence of the terrible explosions occurring in English, Welsh, and Scottish coal mines, by which scores of miners were killed at a time, public attention in England was called to the poverty and misery resulting in part from what many thought a gross defect in the law ; and when, also, after years of agitation. Parliament had passed the Employers' Liability Act, it began to be thought possible in this coun- try to effect a reversal of the common law. Within the past few years this subject has been before the legislatures of several of the States, which, as has been seen, have passed laws making employers liable for injuries in certain cases, although no such general change has been made as that by the English Parliament. Duting the past two years the subject has been before the legislatures of several States, New York and Connecticut among others, which have as yet made no change. Two years ago it was brought before the legislature of Massachusetts by a petition signed by Wendell Phillips, Benjamin F. Butler, Delano A. Goddard, Edwin B. Haskell, and editors of several other leading newspapers published in the State, and other promi- nent citizens ; but, upon reference to the judiciary committee. EMPLOYERS' LIABILITY. 141 and a hearing thereon, the petition was opposed by counsel for all the railroads running into Boston, and defeated. La;9t year the subject was renewed, and, upon hearing, on the recommendation of the committee, was referred by a resolution of the legislature to the Bureau of Statistics of Labor for consideration. Summary of Reasons and Objectioxs. In closing the discussion of this subject, it may be well, even at the risk sometimes of repetition, to give a summary of some of the olyections to and the reasons in favor of a change in the law. One of the most frequent objections against compelling the emplo3'er to compensate his employee for the negligence of a fellow-workman is, that he ought not to be obliged to answer for the acts of another, when he is himself without fault. To which objection the answer is made, that when the employer, by the employment of another whom he vests with a genci-al authority to act in his stead, chooses to part with his own authority, and trust to the judgment and discreti(m of some one else, he ought to abide the consequences, whether good or bad. When the employee does well, he reaps the profits ; when the employee does ill, he ought to suffer the losses; and public policy requires that, as some one must bear the burden of the risk, it should rest upon the shoulders of the person who emploj's, pays and controls the w^orkman. And, moreover, as the law has for centuries imposed upon the employer a similar obligation towards all other persons, making him answerable to the world in general for the negligence of his servants, such an exception to a general principle of liability ought not to exist without some special reason therefor. If it is a hardr ship to be obliged to pay for the wrong-doing of a servant whenever the act is not a wilful act, it is a hardship which the wisdom of our ancestors imposed, and which has not been removed by the wisdom of later times. Another objection, often urged, is that the employee enters into the contract of employment with full knowledge of the dangers, with the risk computed in his wages. As to the first part of this objection it may be asked whether, unless the employment is of a very dangerous nature, the risk of injury is often considered at the time the contract is 142 STATISTICS OF LABOR. made, or any thought taken as to where the responsibility tor damages would rest. And, as no such risk is assumed, on a railroad for instance, by the traveller when he buys his ticket, while, on the contrary, the company is made by law reponsible for the competency of its servants and the safety of the journey, it is natural to ask why a different rule should be made to apply to a brakeman or conductor. Whether the danger of injury is computed in the wages, is a question of fact dependent upon a knowledge of the wages paid to workmen of like capacity in less dangerous employ- ments, which it is evident could be obtained only after a careful investigation of the manifold causes which determine the rate of wages. If, however, only a casual inquiry were made as to the wages paid to laborers of the same grade in other empKjyments, it would be found that the workman is paid for the labor performed, with no compensation what- ever for the risk of injury. But the present state of the law, it is said, rests upon a contract of service implied by the courts ; because, when the rule was adopted, the judges thought that j)ublic policy required an agreement of non-liability, rather than one of liability. But is not this rather a question of political econ- omy than one to be passed upon by the courts ? And is it not possible that what was thought a wise public policy for the State to adopt a half-century ago, when manufactures and railroads were in their infancy, ought to be changed by the legislature, now that the consolidation of capital in great monopolies has become an object of apprehension? In order to foster these commercial enterprises, is it any longer neces- sary to exact so heavy a contribution from the laboring class, and impose the burden of so severe a protective system upon our Own instead of foreign laborers? "While the judges who made this law may have been wise in their generation, is it not probable that the wisdom of time and experience may think that public policy requires a change in the law ? Again, it is urged that the employee ought to be left to his remedy against the fellow-employee who caused his injury. Hardly any one would be so simple as to consider this remedy of any practical value, because, unfortunately, most workmen are not able to pay a judgment for damages, EMPLOYERS' LIABILITY. 143 or even a bill of costs. Besides, until within a year, — until the case of Osborne v. Morgan* overruled the case of Albro V. Jaquith,t decided in 1855, it has been impossible for such a judgment to be olitained. Neither does it seem altogether right to compel an employee, acting in good faith, using his best judgment, as the agent of some one else known to be his principal, to pay for the consequences of doing as he was generally authorized. But, waiving this for the sake of the argument, the law gives the employer a like remedy, by allowing him to recover of the negligent em- ployee any damages he has been obliged to pay as a conse- quence of his negligence 4 In view of this condition of the law, the question may with some pertinency be asked. Why should not the employer be left to his remedy against his employee for reimbursement ? That the dictates of humanity, as well as the promptings of self-interest, stimulate employers of labor to do a great deal towards protecting the lives and limbs of their work- men, there is no doubt. That thej' would not intentionally allow any neglect in the selection of workmen, of the mate- rials used in tlie machinery worked, is equally certain. But, notwithstanding all this, there are doubtless many accidents and injuries occurring daily, which, Avith a little more pre- caution in the particulars mentioned, might have been pre- vinted. Workmen generallj'^ are not in a position to say with whom they will work, or what materials or machinery shall be used; and, if greater precautions are to be taken, they must be provided for by employers. If the ordinary dictates of humanity and self-interest are not sufELcient to make life more secure, ought not their interest in the wel- fare of their workmen to be increased by imposing a heav- ier pecuniary responsibility ? Where an appeal to the gen- erous impulses of the heart is not a sufficient protection, should not an nppeal be made to the more subtle instincts of the pocket? And in this connection it may perhaps be well to allude to the argument that a heavier responsibility is already imposed by requiring the employer to use due care in • 130 M. 102. t4 Gray, 99. X White V. Phillipston, 10 Met. HI ; also 1 Allen, 102. 144 STATISTICS OF LABOE. selecting and maintaining the tools, implements, stock, materials, and plant used by his workmen. Upon considera- tion, this, however, will seem to be an insufficient safe- guard, because its value has been frittered away by the decisions of the courts, which declare that there is no liabil- ity unless the defect complained of was unknown to the person injured, while it was known to the employer, but not communicated. The employer is not liable unless he knew of the defect and declined to communicate it ; or, in other words, he is not liable for his ignorance ; and if for any reason he leaves the duty of detecting defects to another employee, he escapes all risk of damages. While perhaps it would not be wise to make him liable for secret defects, by making him a warrantor or insurer of the safety of the stock or appliances used in his business, wquld it not be well, instead of leaving him almost entirely free from liability, to make him responsible for defects to his work- man, as he is now responsible to strangers? Is not this one of the excepti-ms to a general principle, one of the anom- alies ill the law which works an injustice? Should it be said that the servant is not the master's agent, and therefore the master should not be responsible for his acts, the question is at once asked why he is not the master's agent. Tiiis brings up the real legal question at the bottom of this conti'oversy, which involves the making of an implied contract for the parties by the courts, in the absence of an express contract. How is an agency created? Principally by virtue of the contract of service. What is the agency created? That depends principally upon the contnict of service and the general authority usually con- ferred by the customs and usages of business upon workmen in the same class of employment. That the workman is an agent for the performance of some acts there is no doubt ; but whether he is the agent for doing the particular act which caused the injury, is the question in dispute. How can this be answered? It is a question of fact simply, and not of law, and one mauifestly to be answered from a knowl- edge of all the facts tending to explain the scope of the agency. And, as it is a question of tiict, is it not one which, by anal- ogy to the practice established in the courts for deciding EMPLOYERS' LIABILITY. 145 other matters of fact, ought to be decided by a jury, upon consideration of all the evidence? Even if decided by the judges, should it i)e determined by simply saying that the employee is not an agent for doing the act which ciused the injury, because they (the judges) think it agniust public policy to imply a contract of liability ? That a workman knows the habits of his fellow-laborers better than does his employer, is doubtless true of persons engaged in domestic and menial service, working in the same household and under the same roof, at the same bench, in the same shop, or in the same gang, or, in brief, when en- gaged in similar occupations. And for tliis reason the Scotch courts attempted to limit the operation of common employment to the class of similar occupations ; and, if they had been allowed to persist in this direction, and their ex- ample had been imitated by the courts of England and America, it is probable that by this limitation the hardship of this rule of non-liability would have bnen avoided. The doctrine of common employment, so called, was evidently intended by the judges who invented it to apply only to persons engaged in similar occupations. My widening its application to all persons at work for one master, or paid from one purse, it was made to include pers(ms entirely unac- quainted with eich other's character, habits, ways, and manners of doing work, traits of carefulness or careless- ness ; in large factories, workshops, manufactories, or upon railroads extending over miles of country, with workshops in various places, workmen at many stations, engineers, con- ductors, firemen, brakcmen, baggage masters on many trains, hundreds of employees, in manifold and dissimilar occupa- tions ; it was made to include men who never saw or perhaps never heard of each other, and therefore knew less of each other's habits than the superintendent, the board of directors, or the employers, who engaged them with some knowledge at least of their character, skill, proficiency and capacity. That a change in the law would diminish wages is not certain, because it would seem the natural result of heavier responsibility to employ, with more care and circumspection in the selection, more competent and experienced workmen, who, being of a superior grade, would require superior pay. 146 STATISTICS OF LABOE. As a legitimate result, in railroad and other specially danger- ous employments, the public as well as the employee would be more secure. A frequent objection to changing the burden of liability from the employee to the employer is, that employees would thereby become more careless of their own lives and safety, as well as of the welfare of others i and railway travel especially would become less safe. This abjection presumes that em- ployees would purposely and dishonestly injure themselves in order to obtain damages. But the consideration should not be overlooked, that whenever any person is found guilty of such an act of wickedness, he is prevented from recovering damages by the rule of contributory negligence. It is only in instances of dishonesty towards himself and his employer, which remain undetected or unproved at the trial of the cause, that unjust damages would be recovered. Would not such instances be of infrequent occurrence? Are not the means for eliciting the truth, and the securities against im- posture provided in the administration of justice, through the agency of judges, jurors, counsel, parties and witnesses, so perfect that little danger need be feared ? Seldom does a sham or fraud withstand the ordeal of a jury trial. Is it often that such a man could long remain in any employment without his true character becoming known ? Most men are almost always honest. And not, only are most men honest because it is right, but many refrain from doing wrong, be- cause honesty is. the best policy. Moreover, is not life too dear, and pain too niuch dreaded, to make it probable that any man could become not only so degraded, but so callous to suffering, as to wilfully ruu the risk of losing an arm or a leg or his health, for the purpose of getting a partial compensation in money? And, if such instances are likely to occur so infrequently, ought the law, which tries to pi-e- scribe a rule of action that will do the greatest good to the greatest number, to be restrained from doing an act of jus- tice to the many, lest a few dishonest persons should abuse the right? Against the danger that excessive damages would be awarded, the ordinary protection afforded by courts of jus- tice exists, which, in all other causes where damages are in EMPLOYEES' LIABILITY. 147 question, has for centuries existed as a suitable means of estimating tlie amount to be awarded. If verdicts are usually for the plaintiff, and against corporations, it is like- wise true that plaintiffs are usually right. At least, no bet- ter and more practicable method has been devised for determining what is right and what is wrong, than what are called courfca of justice. There seems to be little force in an argument which declines to pass a law because the amount of damages recoverable under it must be determined in the same way that land damages and other personal damages are determined ; especially when the rule suggested is the best known method of deciding such a question ; or, if it is not, some better method may be easily incorporated in the act. ■ The kindred danger, that a change in the law would be followed by a flood of litigation, seems to be groundless. A similar fear, existing prior to the passage of the English act, proved to be a mere fiction of the brain. How many bills have been defeated because it was feared attorneys would profit from resulting litigation? How many times has this argument been used by persons interested in defeating a measure ? In the first eighteen months after the passage of the English act, as the statistics show, less than a hundred actions were brought under it in England, Scotland, Ireland and Wales, and less than £3,000 in damages recov- ered, with a like amount in costs. According to an estimate already given, based upon the most reliable data to be obtained, the probable number of maintainable suits against the railroads of this State during the year 1880-81 was twelve, and the probable amount of damages which could have been recovered was $60,000. Should it be said that one reason why it is sought to make the employer liable is simply because he has money, it might be candidly admitted that no wise friend of the laboring man would be in favor of a change in the law unless it was likely to do him some good ; but it might also be answered that, as the employer reaps the profits of every profitable act, why should he not suffer the losses of unprofitable acts? Admit- ting that the workman is his employer's agent, commissioned with a general authority to use his own discretion, in place of the judgment of his principal, why, when the exercise of 148 STATISTICS OF LABOR. this discretion proves unfortunate, should not the principal suffer the consequences? The prosecution of business is not like the game of pitch-penny pla3'ed by the gambler, accord- ing to the rule of "Heads 1 win, and tails yon lose." The same objection might be made with equal force against the liability of employers to third persons, or against any bill which seeks to make persons of property responsible for their wrongs or bre.'ichcs of contract. Several objections having been alluded to, it remains lo summarize some of the reasons not specifically suggested in favor of a change in the law. AVithout asserting thiit an employee has a natural right to compensation for injuries directly or indirectly caused by his master, — which is a right oftener asserted by philosophers and publicists than by lawyers and legislators, — there is no doubt that ever since the reign of Charles the Second an established prin- cijjle of common law has held every man i-esponsible for his own torts and breaches of contract, a precedent which our ancestors might have found in the Eoman Law. As early as the reign of William the Third, Lord Holt held a master liable for the negligence of his servant. The application of this general principle was without exception till the year 1837, when, as has been already related. Lord Abinger, in a case not very carefully considered, judging from the analo- gies reasoned from in the o])inion, decided that a master was not liable for the negligence of his servant, whenever injury was thereby caused to a fellow-servant. * Shortly afterwards, at the time when railroads and manufacturing enterprises were in an early stage of development, this exception was followed and emphasized in this State by Judge Shaw in the case of Farwell v. the Boston and Worcester Railroad ;•[• ever since which time the exception may be said to have been a part of the body of our law. The liability imposed upon a master for the negligence of his servant may be said to exist under two sets of circum- stances, in one of which there exists a relation between the master and the person injured, while in the other no relation exists. In one class of circumstances it exists by virtue of an express or implied contract ; while the ground of • Priestly v. Fowler, 3 M. & W. 1. f i Met. 49. EMPLOYERS' LIABILITY. 149 liribility in t'le other is the general obligation resting upon every member of the community so to act that no harm shall, by his negligence or that of his servant, be caused to any other person. This latter obligation is known as the principle of respondeat superior, which compels the master t<» respond for such negligence in damages ; and is stated by Blackstone in these words : " If a master by his negli- gence does any damage to a stranger, the master shall answer for his neglect." Those who seek to base upon this principle their right to a change in the law of liability for the negligence of fellow-employees, say that the term "stranger," because, in the development of railroads and commercial and industrial enterprises, of the wide extent and remoteness of the relationship existing between an employer and his workman, should apply to all workmen not at work strictly under the eye and supervision of the master. On the other hand, those persons who seek to base their right to a change of the law upon the relationship existing by virtue of the contract of service, say that where nothing to the contrary is expressed, the courts should imply a con- tract of liability, instead of implying, as they have done, a contract of non-liability. They assert, furthermore, a fact which is not denied, that the implied contract of non- liability is judge-made law, established by virtue of the right of the courts to decide what is public policy, and what the public policy of the country requires ; that public policy no longer requires, if it ever did, the existence of such a rule of law ; and that the legislature sliould, as it has a right to do, assert its prerogative, and declare a different public policy, by abolishing the exception made to the gen- eral liability of the master for the negligence of his servant. In emphasizing the injustice of this exception, an argu- ment is drawn, b}' analogy, from the liability imposed upon a common carrier for the loss, by fire or other means except the act of God or public enemies, of merchaudize, live- stock, and chattels entrusted for conveyance and safe delivery. And, as a change in the law will in this country affect railroad companies and common carriers of passen- gers more than other employers of labor, the analogy. 150 STATISTICS OF LABOR. drawn from the contract of warranty and insurance that no injury shall occur to whatever is entrusted for safe delivery, is thought to be perfect. If this be so, — and it seems to be, — why should the law be more careful in the protection afforded to merchandize, than in the security placed around human life ? AVhy should the State compel a railroad com- l^auy to pay for the loss or injury of a horse, an ox, or a bale of goods, and allow men to be killed and maimed with- out the risk of paying damages ? And, as one of the incidental results of compelling com- mon carriers of passengers to be as careful of their em- plf)yees as they are of trunks and merchandise would be the employment of more competent and c:ireful men, the se- curity of travellers would be increased ; and this is one of the weightiest reasons for changing the law. Scarcely a week occurs without an accident on some of the railroads of the State or country. As has been stated, during the nine years from 1872 to 1881 inclusive, there were 11,759 persons reported killed or injured on the various railroads of the country ; and 2,744 reported killed or injured by the railroads of this Commonwealth. Almost every one of these deaths or injuries might, by the exercise of proper care, have been prevented. No one will deny that every step taken in the direction of making life moi-e secure, and suffering less frequent, is a step in the right direction. Is it not possible that such a change in the law may be such a fctep ? Should it be asked if the workman cannot better provide against the carelessness of his fellow-workman than can the employer, it might be replied, that, although their co-opera- tion is always necessary to secure safety, the value of any suggestions or complaints is diminished by the fact that the workman has no power to carry his ideas into execution. Employers of labor would naturally consider frequent com- plaints against their employees, frequent suggestions as to the necessity of repairs in the works or machinery, as offi- cious interferences. And those who receive with good grace what are always in the nature of accusations, might not wish to encourage their occurrence, and might not accede readily to requests for improvements. It is a natural EMPLOYERS' LIABILITY. 151 characteristic to prefer to manage one's own business in one's own way, witliout too mucli interference from men liired and paid for tiieir labor. But some one must be lield responsible for every act of negligence, if its repetition would be prevented ; and, when attempting to make acci- dents less frequent, is it not wiser to increase the employer's responsibility, than to trust to his workmen to correct the evils of his manner of carrying on business ? It should not be forgotten that, in* many cases where the employer escapes legal liability by means of the defence of common employment, the servant who, entrusted in his master's absence with the exercise of a geneial discretion, caused the injury, is more competent for pei-forming the duties than his employer. In operations requiring skilled laborers, mechanics, and artificers, how seldom is it that the em|)loyer can do the work imposed upon those under him ! How many men who can pay for the labor can perform it? "When, therefore, it is thought unjust to impose responsi- bility for negligence upon the man who hires the workman, it should be remembered that oftentimes the person com- missioned to act for him is better able than he to perform the duties imposed. The injustice which sometimes is wrought in applying the defence of common employment is seen by remembering the variety of dissimilar occupations which it includes. The essence of common employment is a common employer, aiid all persons paid by the same person, or paid from the same purse, are fellow- employees. All the employees of a railroad company, of a colliery, of a steamboat company, of a factory, of a foundry, of a horse railroad or express company, whether emploj^ed in the same city, county or state, under the same or different foremen or superintendents, ensasred at the main office or a branch office, known to each other or unknown, are fellow-employees, and are by law presumed to be sufficiently well acquainted with each other's habits and character to be compelled to run the risk of Injury from each other's carelessness. Menial and domestic servants employed luider the same roof, and therefore well acquainted with each other, should without doubt be con- sidered fellow-employees. But the earliest use of this 152 STATISTICS OF LABOR. d:)cti-ine was in its application to similar occupalions only. Bscausc every man is liable for his own wrongful acts, employers who personally superintend or direct their own workmen are liable for personal injuries caused by what is really their own negligence. But when, in the increase of business, it becomes necessary to employ othei's to work for them, away from imder their eyes, but obedient to their general authority, this'li.ibilitv for injuries to their em- ployees ceases, although they still remain liable for similar negligence to others. It is thus seen that while the s^mall manufacturer, in order to avoid suits for damages, must take precautions against the carelessness of his workmen, the large manufacturer is relieved from such a necessity. And this anomaly becomes more mai'ked in the organiza- tion of individuals into corporations. For, while a few persons acting together as co-partners are justly liable for their own and each other's negligence, upon complying witn a simple perfunctory requirement of the law, and thereby becoming a corporation, they escape this liability, because they are no longer acting for themselves and each other, but as agents for the corporation, which is exempted from lia- bility for the negligence of its agents in causing injury to each other. It should not be forgotten that the laws of Great Britain, France, and Italy impose a general liability upon employers, whenever the negligence of their servants causes personal injury; while the law of Germany, as well as of several of the United States, has been so changed as to impose spe- cial liability upon railroad corporations for such acts of neglijjencc. Difficulties of Drawing a Bill. It is oftentimes easier to point out the necessity for reform than to show how to accomplish it; and easier to prove that the law should be changed, than to show how it should be done. And, while many persons will agree in thinking that something ought to be done to change the law, they will doubtless differ as to whether the change shall be radical, liberal, or conservative; while there will be, perhaps, a dif-, EMPLOYERS' LIABILITY. 153 ferciioe in opinion among some of each of these classes as to the form and the particuLir phraseology of a bill looking to a change The first subject to be considered is how far the law should be changed ; and upon this it must bo conceded that it would be useless to make any change, unless the emplo3cr was made liable for the acts of his authorized agents in all cases where he has delegated his authority. Whether this should be done by saying that common employment shall no longer be a defence to actions against employers for per- sonal damages, or that the particular instances in which he should be liable should be specified, is an important que— tion. This problem has been solved in some of the States, as has been seen, by enacting that in actions of this kind against railway companies common employment shall not be a de- fence. The difficulty of accnrately defining the term, of sa\ ing exactly what common employment is, and the danger lest some uncertainty should exist as to the exact scope of such a bill, as well as the consideration that it might not bo wise to miike so sweeping a change, are objections to this form of a bill. For example : The term, no doubt, includes menial and domestic servants ; and would it be wise to make the head of a family responsible for the negligence of the servants who live under his roof? responsible, to use an il- lustration of Lord Abinger's, to one servant for the negli- gence of the chambermaid in putting him into a damp bed, or the cook's neglect to keep clean the copper vessels in the kitchen? Should it be attempted to draw the bill in this way, as was done by Mr. Macdonald, it might be advisable to except the master from liability for the acts of domestic servants. Should it be desired to draw the bill by specify- ing particularly when he shall be liable, leaving him free from liability when not otherwise specified, there is room for difference of opinion as to how far it shall be extended, — whether, for instance, an action shall be created for the neg- ligence of the principal person in authority, the superintend- ent, which action has been shown to be of little value ; or for the negligence of every supei-ior workman, of whatever grade (which seems to be the only way to accomplish an im- portant change), are questions for consideration. 154 STATISTICS OF LABOR. One of the earliest of the bills presented to Parli laient was brought in by Mr. Morrison, Mr. Hind-Palmer and ]\Ir. Andrew Johnson in the year 1872 ; and Mr. Wright, a Lon- don barrister, assisted in drawing up and settling its terms. These gentlemen adopted this latter course, and specified in considerable detail the instances wherein a liability should be allowed to attach. But, while the discussion of the sub- ject went on in Parliament among the friends of the employ- ees, and the able secretaries. Parliamentary agents, and solic- itors of their large associations, and when several special committees of Parliament had had the subject under consid- eration, and .it last it had been thoroughly considered and comprehended by several of the leading members of tiie present Gladstone Ministry, — it was found possible to draft the bill in the few words of the second, third, and fourth sub-sections of the first section of the Act of 1880. These make the employer liable for the negligence of any person entrusted with superintendence, and of any superior work- man whose orders or directions the person injured was bound to obey, or the act or omission of any workman who was act- ing in obedience to the rules or by-laws of the employer. The Gladstone Bill. The caption and first section of the bill brought in and advocated by the English Liberals (before it was amended in the House of Lords by the Conservatives) is as fol- lows : — " An Act to extend and regulate the liability of employers to make compensation for personal injuries suffered by workmen in iheir service. " Be it enacted, etc. : " Section 1. Where, after the commencement of this act, personal injuiy iscauscd to a workman : — " (1.) By reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the em- ployer; or •' (2.) By reason of the negligence of any person in the service of the employer, who has any superintendence entrusted to him, whilst in the exercise of such superintendence ; or " (3-) By reason of the negligence of any person in the service of the employer, to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed ; or EMPLOYERS' LIABILITY. 155 " (4.) By reason of the act or omission of any person in the sprviee of the employer, done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or " (5.) By reason of the negligence of any person in the service of the employer, who has the charge or control of any signal, points,* loco- motive engine or train npon a railway, — " The workman, or, in case the injury results in death, the legal per- sonal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work." Bills Presented. Wc present for the action of the legislature, as the result of the very full consideration of the subject committed to us, two bills ; the first, comprehending the features of the Glad- stone Bill presented to Parliament by the Earl De la Warr, with sections added to make the measure practical in this State. This bill changes the doctrine of the courts on com- mon employment to a limited extent, and is incorporated in this report for the reason that many legislators may desire to act upon a limited bill. The second, and the bill we recommend as being most in harmony with existing legislation and the course of law in this State, is a bill which simply seeks to abolish common employment as a defence in actions contemplated by it. I. Commonwealth of Massachusetts. In the Year One Thousand Eight Hundred and Eighty-Three. An Act relating to the Liability of Employers for Personal Injuries sustained by their Employees. Be it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same as follows : — Section 1. Where, after the commencement of this Act, personal injury is caused to an employee, — (1.) By reason of any defect in the condition of the ways, works, machinery or plant connected with, or used in, the business of the em- ployer; or (2.) By reason of the negligence of any person in the service of the • As the railroad trains of this State are not mn and controlled in precisely the same way as English railways, this, in order to be applicable to our system, would need to bo slightly changed ; " points " should read " switch." 156 STATISTICS OF LABOR. employer, who has any superintendence entrusted to him, whilst in the exercise of such superintendence; or (3.) By reason of the negligence of any person in the service of the employer, to whose orders or directions the employee at the time of the injury was bound to conform, and did conform, where such injury lesulted from his having so conformed ; or (i.) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or (5 ) By reason of the negligence of any person in the service of the employer, who has the charge or control of any signal, switch, locomotive engine, or train upon a railway, — the emi}lo3-ee, or, in case the injury results in death, the legal personal representative of the employee, and any persons entitled in case of death, shall have the same right of com- pensation and remedies against the employer as if the employee had npt been an employee of, nor in the service of the employer, nor engaged in his work. Sect. 2. Written notice of any injury shall be given to the employer or his legal representatives by or on behalf of the person injured ; or, in case of his death, by or on behalf of his legal representatives, within sixty days of the injury or death, stating the time, place, and cause there- of; and the action thereon shall be commenced, if at all, within six months from the date of the accident; or, in case of death, within six months from the date thereof. Sect. 3 This act shall take effect on the first day of January, eighteen hundred and eighty -four. n. (ilommonujealtl) of iHassacliusetts. In the Year One Thousand E'ght Hundred and Eighty-three. AN ACT Relating to the Liability of Employers for Personal Injuries sustained by their Employees. Be it enacted hy the Senate and House of liepresentaiiven in General Court assembled, and by the authority of the same, as follows: 1 Seotiox 1. Whenever an action is brought 2 against an employer to recover damages for per- EMPLOYERS' LIABILITY. 157 3 sonal injuries received by an employee while in 4 the discharge of his duty, the fact that the injury 5 was caused by or through the negligence of a G fellow-employee shall not prevent the recovery of 7 damages, unless the employee materially contrib- 8 uted by his own negligence to the cause of the 9 injury, or both the person causing and the person 10 receiving the injury were engaged at the time of 11 the injury in domestic or menial service. 1 Sect. 2. Written notice of any injury shall be 2 given to the employer or his legal representatives 8 by or on behalf of the person injured; or, in case 4 of his death, by or on behalf of his legal reprc- 5 sentatives, within sixty days of the injury or death, G stating the time, place, and cause thereof; and 7 the action thereon shall be commenced, if at all, 8 within six months from the date of the accident; 9 or, in case of death, within six months from the 10 date thereof. 1 Sect. 3. This act shall take effect on the first 2 day of January, eighteen hundred and eighty- 3 four. Appendix A. EMPLOYERS' LIABILITY ACT, 1880. (43 & 44 Vrc. c. 42) 7th Sept., 1880. An Act to extend arid refculate the liability of employers to make compensation for personal injuries suftered by workmen in their service. Se it enacted by Ike Queeii's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows : — Sect I. Where, after the commencement of this Act, per- Amcnd- sonal injury is caused to a workman, — "aw."" (1.) By reason of any tlefect in the condition of ways, worlss, machinery or plant, connected with or used in the business of the employer; or (2 ) By reason of the negligence of any person in the ser- vice of the employer, who has any superintendence entrusted to him, whilst in the exercise of such superintendence; or (.S.) By reason of the negligence of any person in the ser- vice of the emploj'er, to whose orders or directions thework- man, at the time of the injury, was bound to conform, and did conform, where such injury resulted from his having so conformed ; or (4.) By reason of the act or omission of any person in the service of the employer, done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or (i5.) By reason of the negligence of any person in the ser- vice of the employer, who has the charge or control of any signal, points, locomotive engine, or train upon a railway, — The workman, or, in case the injury results in dealh, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of com- pensation and remedies against the employer as if the work- man had not been a workman of nor in the service of the employer, nor engaged in his work. Sect. II. A woi-kman shall not be entitled, under this Act, to Excptiom any right of compensation or remedy against the employer in j^enw'of' any of the following oases (that is to say) : — law. 160 STATISTICS OF LABOR. (1.) Under sub-section 1 of section I, unless the defect, therein mentioned, arose from, or had not been discovered or remedied, owing to the negligence of the employer, or of some person in the service of the empLiyer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. (2) Under sub-section 4 of section I, unless the injury resulted from some impropriety or defect in the rules, bj--laws, or instructions therein mentioned ; pi'ovided that where a rule or by-law has been approved or has been accepted as a pro- per rule or by-law by one of Her Majesty's Principal Secre- taries of State, or by the Board of Trade, or any other depart- ment of the Government, under or by virtue of any Act of Parliament, it shall not ba deemed, fur the purpose of tliis Act, to be an improper or detective rule or bj'-law. (3.) In any case where the workman knew of the defect or negligence which caused his injury, and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or some person superior to himself, unless he was aware that the employer or such superior already knew of the said defect or negligence. IJraltof SiiCT. II [.The amount of compensation recoverable under (■rabi'if aT , , *'^'S ^'^^ shall iiot cxcccd such sum as may be found to be compensa- ' equivalent to the estimated earnings, during the three ve-.irs Hon. ^ a ' B . preceding the injury, of a person in the same grade employed during those 3-ears in the like employment, and in the district in which the workman is employed at the time of the injury. Limit of Sl£CT. IV. An action for the recovery, under this Act of cora- coverj"of"^ pensalion fur an injury, shall not be maintainable unless notice compensa- that injury has been sustained is given within six weeks, and Hon. ■' •' <=> ' the action is commenced within six months from tlie occur- rence of the accident causing the injury, or, in ease of death, within twelve months from the time of death ; pi-ovidcd always, that in case of death the want of such notice shall be no bar to the maintenance of such action, if the ju'87, and. to the end of the then next session of Tarliamont and no longer, unless Parliament shall otherwise determine ; and all actions commenced tinder this Act before that period shall be continued as if the s.tid Act had not ex- pired. EMPLOYERS' LIABILITY. 163 Appendix B. Extracts from Circular issued by Baltimore & Ohio Railroad Compant, promulgating the Organization of an Employees' Relief Asso- ciation. Baltimore & Ohio Railroad Company, Baltimore, May 1, 1880. To the Employees of the Baltimore § Ohio Railroad Company and of its Dii-isions and Branches: The Baltimore & Ohio Railroad Company having been peti- Reasons for tioned by its employees to aid and countenance them in the soJi^^if'"'' organizat'on of a benevolent relief society, and being desirous of securing to them the advantages which experience has uni- formly shown may be enjoyed by tlie employees of railroad and otber large corporations, where associations of that char- acter are in operation, has devised for them a plan embodying, as it believes, the best features of such associations Also, having learned of the pecuniary necessities of persons Reasons for formerly in its service, and being anxious and solicitous that annuity" til- its present and future employees, although esc iping accidents ""■'■ and sicknt'ss whilst in the discharge of duty, shall not And themselves without the means of support, whenever, through approaching old age or the contraction of infirmities, they be- come unable to perform the services assigned th^'m or earning a livelihood in other pursuits, it has added to the indemnity features of the plan a superannuation or ainnuity provision, which it commends to their consideration and adoption. To give force and effect to this plan and as an earnest of its Contribu- solicitude for their comfort and welfare, the company has con- Jt"™ iL it! tributed $100,0 iO as the nucleus of a fund from which its em- Co. to fund, ployees can derive pecuniary relief in the event of becoming incapacitated for earning their livelihood, or by means of which, in the event of death, they may leave some provision for their families, upon condition that they will second its en- deavor to promote their welfare by making such contributions to the fund as will secure its permanency and effectiveness. The company will also, without expense to the fund, give b. & O. R. the services of its staff in conducting the clerical and oiher pijp°i.'° business necessary to its proper management ; office-room for penses of ment. 1G4 STATISTICS OF LABOR. Free trans- portntion of contribu- tor's chil- dren. Half rate tranpporta. tion for con- tributors and fami- Jlies. llcdical at- tendance. its rpoords, etc. ; and, whenever it is necessary or desirable to employ females or children lor such work as they are qualified to perform, preference will be given to the widows, wives, sisters and children of its faithful contributing employees, over other applicants, in the order above named. It will also make arracgemerts by which the children of those contributing to the fund, under sixteen years of age, shall travel free when going to or returning from school, over all its lines, for distances under ten miles, and will give hal.'- fare transportation to contributors, their wives and children, travelling over its lines. Skilful medical attendance will be provided free of expense to all contributors who may be injured while performing any duty assigned them by competent authority. Division of contributors Into classes. Ppecifying "who shall contribute to 1st cl:tss. Sppcifjltig ■who shall^ contribute to 2d class- An Indemnity for Accident and Death consequent thekeupon, slckness and death fkom natural Causes. In order to insure a proper and just discrimination in the imposition of rates between the employees whose occupations rendir them peculiarly liable to accidents and others not so liable, they will be divided into two classes, viz. : — 1st Class. Those engaged in operating trains and rolling stock ; 2d Class. Those not so engaged. The first class will contribute monthly, in advance, accord- ing to the following scale, viz : — Those receiving $3.5 and under per month will contribute $1.00 a month, entitling each to one benefit. Those receiving over f 35 and not more than $50 per month, will contribute $2.00 a month, entitling each to two benefits. Those receiving over $t)0 and not more than $75 per month, will contribute $3.00 a month, entitling each to three benefits. Those receiving over $76 and not more than $100 per month, will contribute $4.00 a month, entitling each to four benefits Those receiving over $10.) per month will contribute $5.00 a month, entitling each to five benefits. The second class according to the following scale, viz. : — Those receiving $35 and under per month will contribute 75 a month, entitling each to one benefit. Those receiving over $35 and not more than f .lO per month, will contribute $1.50 a month, entitling each to two benefits. Those receiving over $50 and not more than $75 per month, will contribute $2,25 a month, entitling each to three benefits. Those receiving over $75 and not more than $100 per month, will contribute $3.00 a month, entitling each to four benefits. Those receiving over $100 per month will contribute $3 75 a month, entitling each to five benefits. EMPLOYERS' LIABILITY. 165 As the Baltimore & Ohio Railroad Company agrees to bear all the expenses incident to the management of the fund, the contributors to it will receive, wilhoiil deduction for expenses, all the benefits secured by their own payments and the com- pany's contribution, and any surplus remaining at the end of each year will be devoted to the reduction of the rates of their contributions. Participation in the benefits of this Association is to be vol- untary as regards officials receiving an annual compensation of over ?2,000, and those whose duties are in nowise hazardous and such as to reader them liable to railroad casualties. All other employees on the main stem, branches and divisions are expected to subscribe to so much of its relief features as relate to indemnity, for injuries or death, occuri'ing while in the discharge of duty and in the company's service. The fund thus constituted is to be controlled by a committee of management, partly elected by the contributors, and partly appointed by the Baltimore & Ohio Railmad Company, in manner hereinafter explained, and devoted exclusively' to relieving the necessities of those contributing to it, in the following contingencies, viz. : — 1. In case of the temporary disablement of any contributing employee whilst in the discharge of duty and in the company's service, the payment to him or to his order, of a daily allow- ance, pay.ible monthly, for a period not exceeding six months from the date of accident. 2. In case of permanent disablement, happening to a con- tributing employee, from accident whilst in the discharge of duty and in the company's employ, incapacitating him from earning a livelihood, the monthly payment of a specified allowance for his support during the continumce of such dis- ablement. 3. In case of the death of a contributing employee by acci- dent arising whilst in the discharge of duty and in the com- pany's service, the payment of a specified sum to theperson designated by him to receive the same, or to his legal repre- sentative. 4. In case of injury or sickness from any cause other than accident whilst in the discharge of duty in the company's service, causing total inability to labor, the monthly payment of a specified allowance for his support, for a period not exceeding one year from commencement of disability. 5. In the event of the death of a contributing employee, occurring from any nllter cause than accident arising whilst in the discharge of duty and in the company's service, the pay- ment of a specified sum to the person designated by him to receive the same, or to his legal representative. The allowances thus indicated shall be baseil upon the con- tributions made by the beneficiary, ai cording to the following scale : — Fund not to be taxed for cxpiMiscs, and conLrib- ut<)rH to re- ceive bene- fit of 8ur- pluij. Designates who may participate ill Itenetits of fund. Funds — how con- trolied. For what purposes used. Temporary disutilement payments. Permanent disablement payments. Indemnity for death by accident. Sick pay- ment. Indemnity for death from nat- ural causes. .\IlowincG8 — hdw cal- eulaled. 166 STATISTICS OF LABOR. Scale. Those receivinD: per month $S5 and under. Those receiving per month over $35 and not more than f 50, Those receiving per month over $50 and not more than $75, Those receiving per month over $75 and not more than $101), Those receiving per month over $100, In c n s e of tempora ry disiiblomont by accrdeiit, whilst in the cliRcliarffe of duty find in the company" -i service, ttie snme beint; profe^j-ionally certiiied in snch manner as may be re- qnircd by the fommiltee of manage mr-nt. tlie monthly ptiympnt, for a pi riod not exceeding six months, oi PER DAY, f 50 1 00 1 50 2 00 2 50 In case of permanent dt sablemcpt and incapacity 10 resume enajil o.yment nri-ing from acciilont\\ hilst in the fl i s- phargeof doty in the compa- ny's serT pe, the same being profes'-iorijilly rertifli'd in snch manner as may be re- quired by the commitli'e of managenipnt. the monthly paymi-nt (ut- ter the sixth monrh)durinu continuance of >-nch d i s- ablement, of PER BAT. m 25 50 75 1 00 1 25 In case of death arising from accident whilst in the discharge of duty and In the company's service, snb- jict to roles governing this class of cases, the payment to the person iiesignated by the deceased, or to his legiil representative, within sixty d a V s a f t e r death, of $500 1,000 1,500 2,000 2,500 4. 5. In c a s e of In cape of injury or sick- death arising ness from any Jtcmanyc'tuso cause other other thai) ac- than accident cident whilst wlillst in the in the tl i 8 - discharge of charge of duty iluty in thi* in the compa- company's ny's j-eivice. sen-ice, caus- subject torn let iUL' totiil ina- governing this bility to labor. class of casfs. sithjiict to the the pavment to rules govern-. the person des- ing thi<» cla'-s ignated by the (if cases, the deci'HSid, oT to payment (not his legal repre- longer than sen t a t ive. one year) of a within sixty daily allow- days a f t er ance of death, of ao 50 flOO 1 00 200 1 50 300 2 00 400 2 50 500 Contribu- tore may tnki! hi>fher Uetiefits. Contribu- tioMB — how levied. Disable- ment allnw- iinced to be paid mouth. Any contributor will be entitled to the higher rates of relief by paying the contribntions provided for those rates. Contributions will, in all cases, be deducted monthly from the members' wages, so that payments will be required of them only when they have earned wages ; and the allowance will, in all cases, be proportioned to the monthly contributions paid by each person in the several classes into which the contributoi-s have been divided. In cases of disablement the allowance will be paid not less than once every month ; before each payment, vsrhether for temporary or permanent disability, satisfactory evidence of its existence must be fnrni.«hcd. EMPLOYERS' LIABILITY. 1G7 To constitute a lawful claim for accident indemnity there must be : — 1st. Exterior or patent evidence of injury, and satisfactory testimdny that it resulted from accident whilst in the discharge of duties assigned the contributor by the company, and inca- pacitates him from earning a livelihood. 2d. In case of death, that the injuries sustained by such accident wei'e the soje and direct cause of death ; or 3d. Not resulting from accidents whilst performing the com- pany's service, that it was not caused by injuries received whilst engaged in unlawful enterprises or riots. The man- agei'S are to be the exclusive judges as to whether the injuries have been so caused and received, and tlieir decision shall be final and conclusive. All legitimate claims for death allowance will be paid in full, irrespective of any pi-evious payments which may have been made under the head of temporary disability allowance; but the managers are to have power to require such informa- tion and particulars as they deem necessary to establish the validity of the claim of any person applying for allowance. In urgent cases the mand,gers have power to pay part of the death allowance within a shorter period than sixty days, but the whole will always be paid within that time. What con- Slilllt*'!* u Icgul chiiin fur aei'iiitnt indemnity. Whnt con- Btitutex claim for de.ith iii- dumiiity. Pnatli clainia to he pjiid In full, irreHpectivc of prt'vioui* paymeiilB. Donlh al- lowanct; to be paid within sixty days. The several subscriptions to the fund will be deducted monthly, or whenever salaries are paid by the company's pay- masters, in advance, and will be held subject to investment or disbursement as the managers may decide. Collection or snlisciip- tiulis. The managers are to be chosen partly by the Ballimore & Ohio Railroad Company, on account of its interest in the fund, and partly by the contributors to it. The company are to choose four, and the contributors five — the majority of those selected. Mannfjf rs — how chosen. The condition of the fund is to be annually investigated and reported on by a proper and competent person, to be selected by the managers for that purpose. Annual in- TePtitfation Into condi- tion of fund. The Baltimore & Ohio Railroad Company guarantees fulfil- ment of the benefits herein indicated. B. & o. R. II. Co. KUar- antece ben. elits herein enumerated 1(58 STATISTICS OF LABOR. RELIEF AND ANNUITY FEATURES. CONSTITUTION. T!tli>nf As. sut:iatlull, ObJL-cts. Surgical at- tendance. Allowiince for tenipo- riiry liid- ablument. Allowance ftn- pcrmn- lieMlt (Uhh- l>tcmcnt. Indemnity for ilea th ff