George W. Alger

“ Such being the American rule as to the ordinary negligences of the employer to do his legal duty in furnishing his workman a safe place to work, or safe tools and appliances, is there any different rule properly invoked when the master neglects to comply with a specific, definite, statutory duty ? ”

“ The law of master and servant in its relation to the law of negligence affords perhaps the most striking example in the last half-century of gross injustice done by this disposition to restrict responsibility and suppress litigation. ”

“ Even if the workman protests against the exposure of his life by such defect, if he keeps at work he assumes the risk he protests himself unwilling to assume. A somewhat different rule is adopted in England, where the question whether the workman voluntarily took his chances of being injured is for the jury to say from the circumstances. ”

“ In an employment so dangerous (if necessary precautions be not taken) that great numbers of working people are exposed to avoidable dangers to life and limb, and when (recognizing the interest which the state has in the welfare of the citizen) the legislature has interposed its authority in enacting regulative statutes, does not public policy require that such statutes should be mandatory, and not subject to constructive or actual waiver by the persons for whose safety they are framed ? ”

“ It has been held in Indiana, Missouri, and Illinois that where there is a general public ordinance regulating the speed of railway trains passing near or through cities, enacted for the benefit of the public, an employe of a railroad who continues in its employment with knowledge of the violation of the ordinance (without contrib- uting actively to its violation) does not assume the risk of injury, nor is he by reason of his employment deprived of any of the benefits of the ordinance to which other citizens are entitled. ”

“ In case a statute makes it mandatory upon the employer to take certain precau- tions, to use certain safety appliances in his business, and he neglects or refuses to comply, does the workman who knows of his employer's neglect to comply with the statute, assume the risk of personal injury which may result from the latter's refusal to obey the law ? ”

“ Any perceptible diminution in the number of accidents can scarcely be expected when the responsibility of the master for his own negligence to his work- men is nominal and not actual. The prospect of verdicts for large damages actually sustained on appeal 1 in actions brought against him by his injured employes would be a most healthful stimulus to vigilance by the master in performing his legal duties to his men and in giving reasonable care to their safety. ”

“ To our mind there is, and that public policy should induce us to hold, unless a contrary doctrine is settled on authority, that this statutory protection cannot be waived. Our notion of government has confined state interference with the freedom of individual action within narrow limits, but such interference has never been utterly prohibited. ”

“ If the conditions of an employment are such as to make such legislation necessary to preserve the lives of employes, such resulting legislation should be supported by the courts instead of being nullified and rendered absurd. ”

“ It is calculated to bring law into contempt, not only among the working people (whose atti- tude at best toward the judiciary leaves something to be desired) , but also among the manufacturers and great employers. Dead- letter statutes of this kind are a luxury which cannot be well afforded in a country whose ultimate source of authority is law.
The attitude of the courts toward factory legislation is of importance to others besides the injured litigant. ”

“ The whole is no greater than the sum of all its parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer. 1
Under this theory, it is apparent that the question which we are considering involves an important matter of public policy. ”

“ Provided, however, that such workman shall not by reason only of his continuing in the employment of the employer with knowledge of the defect negligence act or omission which caused his injury be deemed to have voluntarily incurred the risk of the injury. ”

“ The propriety, and even necessity, of what is called factory legislation, in its general principles, is rarely dis- puted now. The danger of employment in manufacturing estab- lishments increases yearly with the perfection by modern inventive genius of complex, rapidly moving, and dangerous machinery. The number of death cases and cases of serious injury in manufacturing establishments increases yearly in pro- portion. ”

“ In the case of a maimed employe" he and his family are likely to become a public charge ; the community would seem to have as much an interest in the pro- tection of the life and limbs of a member of it as in the question whether he should pay 8 per cent, or 6 per cent, interest. Yet by no means which human wit can devise can he make a valid contract to pay more than 6 per cent, interest." ”

“ Knowledge by any employe" injured of the defective or unsafe character of any machinery, ways, or appliances shall be no defense to an action for injuries caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. ”

“ The railroad lobby, in all states the most bitter opponent of any extension of employers' liability, however reasonable or just, was apparently strong in Mississippi. Any other reason for such an excep- tion it would be difficult to find. CO UR TS A ND FA CTOR Y LEG I SLA TION 405
a personal opinion, it is that the English rule, in cases where no violation of statute is involved, is fairer, leaving it for the jury to say, from the facts in evidence in a given case, whether the work- man who continues to use machinery he knows to be defective should be held to have assumed the risk of injury. ”

“ In New York the report of the factory inspector for 1899 shows that in this state alone the number of workmen killed per annum in industrial establishments was more than twice as large as that of the soldiers killed in the Spanish war ”

“ This theory resolutely closed its eyes to com- mon, obvious, social, and economic distinctions between men, either considered as individuals or as classes, and with self- imposed blindness imagined rather than saw the servant and his master acting upon a plane of absolute and ideal equality in all matters touching their contractual relation ”

“ The former naturally desire to obtain as much labor as possible from their employes, while the latter are often induced, by fear of discharge, to conform to regula- tions which their judgment, fairly exercised, would pronounce detrimental to their health and strength. ”