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ported by the economic theory, of dubious soundness, that when a person enters into any employment

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the risks naturally incident to his work are taken into account in the calculation of his wages." 33 That Chief Justice Shaw in the Farwell case did not base his decision wholly on grounds of strict legal logic is evident from his statement that "it is competent for courts of justice to regard considerations 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." So in cases involving the doctrines of contributory negligence and assumption of risk the tests of the circumstances which shall justify their application are quite likely to be colored by the economic philosophy of the judges. It has already been pointed out that tests of varying severity have been applied under the fellow-servant rule to determine who shall be considered fellow-servants.

With changes in the organization and methods of industry the inadequacy of the philosophy of laissez faire and the injustice of the common law principles of employers' liability became increasingly evident and there developed a desire to remove some of the limitations on the employee's right of recovery. That this desire manifested itself largely in the form of statutes is probably due to the fact that legislative bodies are more responsive to public opinion than is the bench, and also because judges are loath to run counter to a well-established body of legal doctrine. It was nat

83 Dicey, "Law and Opinion in England," p. 280.

ural that the fellow-servant rule, which gave rise to the greatest injustice, should first be attacked, and the early "employers' liability acts" had as their main purpose the placing of an injured servant in the same legal position as a stranger if the injury was caused under certain circumstances. These laws also removed the death limitation but limited the amount which might be recovered either by the injured servant or by his heirs.34 These and succeeding statutes have attempted to equalize the advantages of employer and employee and have put into effect a philosophy which recognizes that individualism means exploitation and that the state must lay down positive rules to secure justice between master and servant.

The Federal Employers' Liability Act of 1908, modifying all of the old doctrines by which the employer sought to escape liability, is in marked contrast to the earlier statutes which attempted to remove only the most evident defects of the common law.

REFERENCES

Burdick's Law of Torts, 3d ed., Banks & Co., Albany, N. Y. (1913), Chap. IV. §§ 3, 4, Chap. XV. §§ 1-4. Shearman and Redfield on the Law of Negligence, 6th ed. Edited by Robert G. Street, Baker, Voorhis, & Co., New York (1913). Parts I, II, & VIII.

Bailey on Personal Injuries, 2d ed., Callaghan and Co., Chicago (1912).

BOHLEN, FRANCIS H. "Voluntary Assumption of Risk," I, II, 20 Harvard Law Review 14, 91 (1906).

34 cf. Mass. Employers' Liability Act of 1887.

BURDICK, FRANCIS H. "Is Law the Expression of Class Selfishness?" 25 Harvard Law Review, 349 (1912). DICEY, A. V. "Law and Opinion in England," Macmillan, London (1905). Pp. 279-283.

CHAPTER V

CRITICISM OF THE SYSTEM OF EMPLOYERS'

LIABILITY

The system of employers' liability proceeds on the theory that the economic loss occasioned by an industrial accident should be borne by the person injured unless he can show that some other person is directly responsible, through a negligent act or omission, for the occurrence of the accident. If such personal responsibility can be proved the guilty party is liable in damages which are supposed to compensate for the loss sustained because of the injury. This does not mean that the employee is considered to have been at fault in the event that he is unable to attach liability to another. Many accidents arise from the methods of carrying on a business, responsibility for which must be assigned to conditions rather than persons. The concept of personal fault which is at the basis of employers' liability prevents recovery for the results of accidents of this nature and the workman must bear the loss incurred. All of which is but one phase of the general philosophy of laissez faire which holds that men should bear the consequences of their own conduct and of the normal conditions in which they find themselves.

Liability on the part of an employer may be estab

lished only by means of a suit at law. The courts, in determining the existence of fault as a basis for liability, are guided by the rules of negligence law and by the various statutes which have been passed in modification of these rules. It is, therefore, to be borne in mind that, in order to collect damages, an employee must prove legal liability, which may or may not coincide with one's ideas of moral liability and justice.

That dissatisfaction with the operation of the law of negligence in its extreme form has been widespread is evident from the universal enactment of statutes designed to extend the liability of employers and to facilitate recovery by workmen. Limitations have been removed, responsibility has been broadened, and a new body of law created. But even the continued attempts of law-makers over a period of nearly forty years have failed to produce a system of employers' liability which satisfactorily adjusts the distribution of economic loss. Such attempts, where they have not been defeated by the extremely conservative interpretation of the courts, have resulted only in removing some of the more striking defects of the system.

A criticism of the practical operation of employers' liability should seek to determine to what extent it accomplishes its fundamental purpose, the solution of the problem created by industrial accidents. In so far as that purpose is not completely accomplished the system is defective and it should be corrected or other means adopted to the same end. The employing and employed classes as well as society at large are concerned in its contribution.

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