How far our legislators are enabled to withstand public sentiment, no matter how strongly based in reason and how definite in objective, may be instanced in the attitude of Congress regarding the Safety-appliance act of 1893. Agitation for this measure had grown to such an extent that action could no longer be delayed. But though action on the bill could not be delayed, the terms of fulfilment of the bill could be postponed to a comparatively remote period. The number of railway employees killed in the year ended June 30, 1893, was 2727, a number exceeding the Union death roll in every battle of the Civil War except Gettysburg, and within 243 of that record. In the same year the number of wounded (31,729) was more than three times as great as the number of Union wounded at either Antietam or Chancellorsville, and more than double that at Gettysburg. Yet despite this tremendous carnage, the legislators, wavering between the public demands and the demands of the magnates, though they passed the bill, generously granted five years for its complete observance, and then gave the Interstate Commerce Commission the power to grant further delays—in effect giving seven years for its fulfilment. In those seven years 13,906 employees were killed—a loss exceeding the Union death roll at Gettysburg, Spottsylvania, the Wilderness, Antietam, Chancellorsville and Chickamauga combined—and approximately 220,000 were wounded, or more than three times the number of Union wounded in those six battles. That a great part of this casualty record was avoidable is evidenced in the August report of the Interstate Commerce Commission, which shows that the number of employees killed in coupling accidents in the year ended June 30, 1901, declined from 282 to 198, and the number injured from 5229 to 2768. It was in 1893 that this generous latitude was granted the magnates. Were the occasion to arise now, it is probable that the term of grace would number fourteen years instead of seven.
CHAPTER VI
Our Interpreters of Law
The attitude of the judiciary in matters involving class antagonisms is a subject upon which only the most restrained language is tolerable. Even general inferences which suggest such a thing as judicial bias must be avoided. Faith in the rectitude and wisdom of our judges is a virtue sedulously preached,—perhaps most insistently by those who do most toward their corruption,—and though the virtue as we know it is rather vocal than immanent, it is sufficiently deep-seated to be intolerant of spoken heresy. Were it openly questioned by any considerable body of citizens, the foolhardy persons would soon bring down upon themselves the rallying onslaught of those heterogeneous elements which Karl Marx somewhat extravagantly pictured, “landlords and capitalists, stock-exchange wolves and shopkeepers, protectionists and free-traders, government and opposition, priests and freethinkers, young street-walkers and old nuns—under the common cry for the salvation of property, religion, the family, and society.” Such heretics might have all the certainty of Paul, “that the law is good, if a man use it lawfully,” and yet it would be a parlous thing to be openly sceptical of the assumption that it is always lawfully used.
But at least one may, without attainder of anarchy, assemble and classify certain instances, and point out their coincidences and their contrarieties. There is, for example, a notable sameness in kind of the laws which are declared unconstitutional. There is, to utter it mildly, a vast preponderance in the number of injunctions against striking, boycotting, and agitating over the number against locking-out, blacklisting, and the employment of armed mercenaries. There is a practical, though not an entire, unanimity against the awarding of damages to injured employees, whether the decision be based on common or statute law; and, finally, there is a considerable diversity between the decisions usually rendered by judges elected for short terms, and therefore directly responsible to the people, and those rendered by the less responsible judges, elected for long terms or appointed.
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.)