Our Benevolent Feudalism

by William J. Ghent

I

The legislative aspects of employers’ liability have already been considered. Certain judicial aspects of the matter need also to be touched upon. The question is one of grave social import. The worker no longer owns his tools, but must use the machinery provided for him. A certain element of danger inheres in the operation of probably all machinery; but when old, defective, or with its dangerous parts unguarded, injuries to its operatives are well-nigh certain. Yet for such injuries, with their awful consequences to the operative and his dependent ones, there is generally no redress, except in a few States where statutes have fixed the matter of liability in set terms which leave no room for judicial discretion.

Under the common law the workman is held to assume the risk attending his employment. He is a free agent—so the legal fiction runs—and if afraid of injury need not work. Common law also presupposes the providing of a “reasonably safe” place and “reasonably safe” machinery by the employer. It would be difficult to determine, however, from the mass of decisions under the common law, what is meant by “reasonably safe.” A Colorado lower court gave damages to the mother of a miner killed by falling rock while removing débris from one of the mines of the Moon-Anchor Consolidated Gold Mines, Limited. The case came finally to the United States Circuit Court of Appeals for the Eighth District, and the judgment was reversed, Judges Sanborn and Adams concurring and Judge Thayer dissenting. The work was admittedly hazardous; in the opinion of Judge Thayer “the place was needlessly made unsafe by the master’s negligence.” The concurring judges, however, decided that the company’s negligence was not responsible, and that “the deceased of his own free will determined to cope with these risks and hazards.... In this, his own voluntary conduct, is found the intervening, proximate, and responsible cause of his injury.” (111 Federal Reporter, 298.)

Even when the employer assures the workman of the safety of a machine, the risk is still, according to many decisions, the workman’s. The Circuit Court of Shiawassee County, Michigan, refused to award damages to a workman for injuries sustained from a defective machine which he was operating for his employer. The case went to the Supreme Court on a writ of error, and on December 15, 1900, that court affirmed the previous judgment. It had been shown that the plaintiff warned his employer of the danger of the machine, and that the employer gave assurances to the contrary. Nevertheless, in the words of Judge Moon (Moore?), “one cannot continue to operate a machine which he knows is dangerous simply upon the assurance of his employer that it is not, if he has just as much knowledge of the danger arising from the operation of the machine as the principal has [without assuming the risk].” (82 N. W. Reporter, 1797.)

The decision, read by Judge McLennan, in the recent case of Rice vs. the Eureka Paper Company (76 App. Div. 336) before the Fourth Appellate Division of New York State, would seem to indicate that the burden of risk is not to be shifted from the workman even when his employer acknowledges a defect in machinery and promises to remedy it. There is some doubt, however, if such a decision, though valid in many States, will stand in the State where it was given; for the Court of Appeals has several times decided that liability follows from an acknowledgment of defective machinery. On the other hand, this highest court of New York State has won the distinction of carrying the doctrine of assumption of risk to an extreme degree. The case of Gabrielson vs. Waydell (135 N. Y. 1) involved the question of the liability of the owners of a maritime vessel for injuries suffered by a sailor in their employ. The captain of the vessel had committed a confessedly unprovoked and particularly brutal assault upon the sailor, who had subsequently sued the owner for damages. The court decided that the sailor had no redress; that “the misconduct of the captain was a risk assumed by the seaman, for the consequences of which the owners are not responsible.”

A fact more curious yet to the unlegal mind is the judicial contention, instanced in the previous chapter, that statutory provisions for the safeguarding of machinery may be waived by the workman. Evidently his burden of risk, like the Hindu’s caste, is born with him, and cannot be laid aside or escaped. The case of the E. S. Higgins Carpet Company vs. O’Keefe (79 Federal Reporter, 900) is an illustration. Damages for an injury received from an unguarded machine had been given a fifteen-year-old boy in the United States Circuit Court for the Southern District of New York. The United States Circuit Court of Appeals for the Second Circuit, however, reversed the judgment. The plaintiff was a minor, but this fact was held to have no bearing. “We think the circumstance that he was a minor of no importance,” read the decision of Judge Wallace. “The rules which govern actions for negligence in the case of children of tender years do not apply to minors who have attained years of discretion.” The New York factory act required guards for this particular kind of machine. But that, also, was immaterial. “The provisions of the statute ... requiring cogs to be properly guarded, have no application to the case, except as regards the question of the negligence of the defendant. As construed by the highest courts of the State, the statute does not impose any liability upon an employer for injuries received by a minor in his service in consequence of the fault of the employee, or arising from the obvious risks of the service he has undertaken to perform.” To clinch the matter, Judge Wallace cited the then recent case of Graves vs. Brewer before the Fourth Appellate Division of New York State, wherein the court held that “the liability of the employer was not changed by reason of the factory act requiring cog-wheels to be covered, because such protection could be waived and was waived by a person accepting employment upon the machine with the cogs in an unguarded condition, as the danger was apparent, and one of the obvious risks of the employment.” The case of Knisley vs. Pratt (148 N. Y. 372) before the New York Court of Appeals was decided in the same way, and also the case of White vs. Witteman Lithographic Company. In the latter case the plaintiff was a child of fourteen.

Such decisions are common in more States than one. Another case which may prove of some interest to the lay mind is that of Gillen vs. the Patten and Sherman Railroad Company (44 Atlantic Reporter, 361). The plaintiff, while uncoupling cars, had his foot crushed in an unfilled frog, and had been awarded damages. A motion for a new trial was argued before the Supreme Judicial Court of Maine, and was granted. The decision, delivered by Judge Lucilius A. Emery, acknowledged the existence of a statute (chapter 216 of 1889) requiring the filling or blocking of guard rails or frogs on all railways before January 1, 1890. It held, however, that such filling and blocking was not immediately mandatory upon a railroad constructed after that date. “Such company is entitled to a reasonable time for compliance with that statute.” It was at a crossing of such a railway that the trainman lost his foot. He had no right to assume that the rails were blocked, merely because a statute said they should be. The brakeman, therefore, assumed the risk, and he also furnished contributory negligence, since “to move about over frogs and switches while coupling and uncoupling cars, even in moving trains, without taking any thought of the frogs and guard rails, or as to where he may be stepping, is negligence on his part contributing to the catching his foot in them.”

When the doctrine of assumption of risk is inapplicable, when personal negligence cannot be shown, and when there has been no waiving of statutory provisions by the workman, there is yet, in judicial eyes, one last resort for the defendant company—the common-law plea of negligence on the part of a fellow-workman. There is some diversity of opinion among eminent judges as to who are strictly fellow-servants. “The courts of the majority of the States hold, however,” writes Mr. Stephen D. Fessenden, in the Bulletin of the Department of Labor for November, 1900, “that the mere difference in grades of employment, or in authority, with respect to each other, does not remove them from the class of fellow-servants as regards the liability of the employer for injuries to the one caused by the negligence of the other.” Thus it has happened that a workman acting in the capacity of agent for his employer, and ordering other workmen to do tasks at which injuries have resulted, has been held to be a fellow-servant—a judgment relieving his employer of liability. To the lay mind it would seem that workmen in different departments could hardly be classed as fellow-servants; and the United States Supreme Court has rendered a decision which makes possible, under certain circumstances, such a discrimination. Since then, however, the Federal courts have suffered a reaction on the question, and current decisions tend the other way.

A case before a State tribunal—the Supreme Court of Georgia (35 Southeastern Reporter, 365)—illustrates the possibilities which lie in this doctrine. A lineman, while repairing a wire for the Brush Electric Light and Power Company, at Savannah, Ga., was killed through the act of the engineer in turning on the current. The city court of Savannah gave damages to his widow. The case was taken to the State Supreme Court, and decision rendered March 3, 1900. The counsel for the plaintiff contended that the fellow-servant doctrine could not apply, on account of the lineman and engineer working in different departments, “so that there was no opportunity for the exertion of a mutual influence upon each other’s carefulness.” The court, however, reversed the verdict.

The disparity of opinion between inferior judges and superior judges in cases of this kind is remarkable. The monthly Bulletins of the Department of Labor give a fairly excellent summary of court decisions on labor questions. He who reads them will find the expression, “judgment of the lower court reversed,” recurring with a rather painful iteration; unless, indeed, the decision of the lower court has rebuked the plaintiff, when the expression, “judgment of the lower court affirmed,” is usually found. Mr. George W. Alger, in an article on “The Courts and Factory Legislation,” in the American Journal of Sociology for November, 1900, gives the following careful and temperately worded summary of recent reversals in employers’ liability cases in New York State:—

“The percentage of reversals on appeal in master-and-servant cases of this kind, when the verdict of the juries in the courts below had been in plaintiff’s favor, is perhaps larger than in any other branch of litigation. In New York, for example, an examination of twenty volumes of the Court of Appeals reports (126 N. Y.-156 N. Y.) shows written opinions in thirty-seven such cases. Of these: (1) in three cases the juries in the lower court had found for defendant, and plaintiff was the appellant; (2) in four cases the court below had dismissed plaintiff’s case as insufficient, without requiring defendant to introduce any testimony; (3) in thirty cases the juries below had found for plaintiff with substantial damages. The Court of Appeals in class (1) affirmed all of the cases where plaintiff was defeated below. In class (2) it reversed the four cases where plaintiff had been summarily non-suited and sent the cases back to trial courts to hear defendant’s testimony: a partial victory at most for plaintiff. In class (3), where plaintiff had actually received a verdict, of the thirty cases twenty-eight were reversed. These statistics are interesting as showing how complete is the lack of harmony between the courts, at least in New York, and the moral sense of the people by whom the courts were created, in regard to these cases. Twice in thirty times do the opinions of the learned judges of New York’s highest court coincide with the opinions of juries of citizens as to the requirements of justice.”

The tendency, which is most clearly indicated by the mass of decisions in cases demanding damages for injuries or death, is the growing disposition to make property paramount and life subordinate. It is a common practice to set aside verdicts of damages on the score that they are excessive. It is no less a common practice to instruct the jury to decide for the defendant in order to rebuke litigation. The language of the leading work on one phase of this subject—Shearman and Redfield’s “A Treatise on the Law of Negligence”—sums up the matter in a few words:—

“It has become quite common for judges to state as the ground of decisions the necessity of restricting litigation. Reduced to plain English, this means the necessity of compelling the great majority of men and women to submit to injustice in order to relieve judges from the labor of awarding justice.... The stubborn resistance of business corporations, common carriers, and mill-owners, to the enforcement of the most moderate laws for the protection of human beings from injury, and their utter failure to provide such protection of their own accord, ought to satisfy any impartial judge that true justice demands a constant expansion of the law in the direction of increased responsibility for negligence.”