CHAPTER IV THE LAW OF NEGLIGENCE AS APPLIED TO THE RELATION OF MASTER AND SERVANT The Law of Negligence.-The law of negligence is a branch of the common law and consists of a set of rules for determining the legal liability of one person to another for injuries caused by an unintentional neglect of duty. In any given case it is attempted to determine who is at fault (i. e., guilty of negligence) and to assess damages upon the guilty party for the benefit of the person injured by the fault. Actionable negligence may be defined as follows: "Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that degree of care, diligence and skill which it is his legal duty to use for the protection of another party from injury as, in a natural and continuous sequence, causes unintended damage to the latter." 1 An analysis of this definition reveals the essentials of a cause of action for negligence: "Negligence consists in: 1. A legal duty to use care; 2. A breach of that duty; 3. The absence of distinct intention to produce the precise damage, if any, which actually follows. 1Shearman and Redfield on the Law of Negligence, § 3. "With this negligence, in order to sustain a civil action, there must concur: 1. Damage to the plaintiff; 2. A natural and continuous sequence, uninterruptedly connecting the breach of duty with the damage, as cause and effect." 2 Before 1837 there were no cases on the liability of a master to his servant and the law of negligence was applied wholly as between the master and third parties to whom he was liable for injuries caused by his own negligence or by that of his servant. Blackstone, in his Commentaries, makes no mention of the master's liability to his servant. The law of negligence was not applied to the internal affairs of an industrial group, probably for the reason that, in early times, such groups were on much the same basis as the family and regulation of the personal relations of the members was accomplished without appeal to the courts. EMPLOYERS' LIABILITY Beginning with Lord Abinger's decision in the case of Priestly v. Fowler, there has grown up a body 5 2 Shearman and Redfield on the Law of Negligence, § 5. 3 The terms master and servant are used in law as synonymous with the ordinary usage of employer and employee. *"It is an old and thoroughly established doctrine that, where the relation of master and servant exists, the master is responsible to third persons for the damage caused by the wrongful acts or omissions of his servants, in the course of their employment as such." Shearman and Redfield, op. cit., § 141. This rule is known as the doctrine of respondeat superior. 3 M. & W. 1 (1837). of law defining the liability of an employer to his servant for personal injuries. The law of employers' liability follows the general principles of the law of negligence but has some features peculiar to itself." (There are certain legal duties of protection which the. master owes to his servant, to whom he is liable in damages for the injurious consequences of his neglect to use due care in the performance of such duties.7 | These duties are: 8 1. To employ suitable fellow servants. The master must "use reasonable care in selecting suitable and sufficient co-servants." 2. To establish and promulgate proper rules. The nature of the rules required is determined by the character of the business— some employments requiring no rules. "Ordinary diligence" in establishing and enforcing rules is sufficient. 3. To provide a safe place to work. "It is the master's duty to exercise reasonable care in furnishing those things which go to make up the plant and appliances, so as to have them at the outset reasonably safe "There is some dispute among authorities as to whether these features are a natural application of the established principles of the common law of negligence or are the result of the economic philosophy of the judges with respect to the peculiar relation of master and servant. For discussions from different points of view see Bohlen, "Voluntary Assumption of Risk," and Burdick, "Is Law the Expression of Class Selfishness ?" 'V. supra, analysis of definition of negligence, pp. 41, 42. 8 Burdick, The Law of Torts, pp. 184 ff. |