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prises. They are, first, that an employer is not liable to an employee for the damages caused by a co-servant; second, that the contributory negligence of an employee shall be an absolute bar to the recovery from an employer of damages in cases in which the employee, as well as the employer, has been guilty of negligence; and, finally, that where an employee has knowledge of unsafe conditions, and, notwithstanding that knowledge, continues his work, he is to be deemed to have assumed the risk of his conditions." 18

It will be observed that the foregoing doctrine is very similar to that propounded by Mr. Adams. The judiciary adopts rules of law with the idea of protecting the dominant class. At least the three rules in question were adopted with that idea. This is a grave charge against the English and American courts. Is it valid?

That it cannot be sustained, so far as the contributory negligence rule is concerned, is clear. This rule antedates all fellow-servant controversies, and was fully established by judicial decisions in law suits to which employer and employed were not parties. To quote from Mr. Beven: 19

"The case usually referred to as the first which definitely formulated the rule of law is Butterfield v. Forrester.20 Plaintiff, who was riding violently, rode against an obstruction in the highway placed there by defendant, and was injured. Bayley, J., directed the jury that, if a person riding with reasonable and ordinary care could have seen and avoided the obstruction, and if they were satisfied that the plaintiff was riding along the street extremely hard and without ordinary care, they should find for the defendant; which they accordingly did."

The rule was restated and applied in numerous cases, both in England and in this country, during the next thirty years, without any reference to controversies between employed and employer." When such controversies began to come before the courts, and the employer

18 Social Reform and the Constitution, 251.

19 Beven, Negligence, 3 ed., 150.

20 II East 60 (1809).

21 See Vanderplank v. Miller, M. & M. 169 (1828) (action for running down a ship); Lack v. Seward, 4 C. & P. 106 (1829) (collision of two barges); Vennall v. Garner, 1 Cromp. & M. 21 (1832) (running down ship by another); Pluckwell v. Wilson, 5 C. & P. 375 (1832) (collision between wagons); Williams v. Holland, 6 C. & P. 23 (1833) (driving chaise against cart); Luxford v. Large, 5 C. & P. 421 (1833) (loaded wherry swamped by a steam vessel); Rathbun v. Payne, 19 Wend. (N. Y.) 399 (1838) (collision between canal boats); Hartfield v. Roper, 21 Wend. (N. Y.) 615 (1839) (running over a child unattended in the highway).

interposed the defense of contributory negligence against the employee, he was making no novel claim; he was not calling on the court for any class intervention on his behalf; and when the court upheld the defense, it was not adopting "a rule with the idea of protecting the interests of the employer rather than those of the employed." In one of the earliest cases,22 in which an employer successfully set up the defense of contributory negligence of the employee, the court said:

"The negligent act was as much the act of the plaintiff as of the defendant's foreman, and no man can, in any case, be allowed to recover a compensation for damages resulting from his own misconduct or negligence. A plaintiff suing for negligence must himself be without fault."

The Supreme Court of Michigan dealt with this defense in the same way, when it was interposed for the first time in that state by an employer against an employee.

"Where no other considerations interfere, it is a well settled rule that a person who has by his own negligence so far contributed to the injury done him that he might by the use of ordinary diligence or care, have avoided it, has no right of action." 23

No reference here to any novelty in the defense; no hint that the employer was invoking any principle peculiar to him or his class; no intimation by the court that it was formulating a rule in the interests of the employer. And not one of the authorities cited for the well-settled rule of contributory negligence, was connected with labor litigations.24

Equally true is it that the rule, referred to in the above quotation, concerning the assumption of risk by the employee, is not peculiar to labor litigation, and was not adopted by the courts "with the idea of protecting the interests of the employer rather than those of the employed." The legal principle applied in this

22 Brown v. Maxwell, 6 Hill (N. Y.) 592 (1844).

23 Mich. Cent. Ry. v. Leahey, 10 Mich. 193, 198 (1862), citing Butterfield v. Forrester, 11 East 60 (1809); Marriott v. Stanley, 1 M. & G. 568, 853 (1840) (plaintiff thrown against an obstruction put in the street by defendant); Clayards v. Dethick, 12 Q. B. 439 (1848) (plaintiff's horse killed while being led over a trench negligently left open by defendant).

24 See cases in last note.

rule is very ancient. Mr. Beven 25 has traced its history from Homer, Aristotle, the Roman jurists and the Year Books to the present time. The topic is discussed very fully also by Mr. Labatt.26 Both writers assure us that it had been accepted by the English courts as early as 1820, as authority for the rule that one who voluntarily exposes himself to a known and appreciated danger assumes the risk of the consequences. Both cite Ilott v. Wilkes 27 in support of this statement; and Mr. Labatt calls attention to the close resemblance of the language of the judges, in that case, "to that which has become so familiar in employers' liability cases." 28 Moreover, he emphatically declares that the maxim of volenti non fit injuria is one of universal application, and that whether it is or is not available in a particular case cannot be affected by the mere fact that the relations of the parties to the action were for some purposes defined by the contract. Accordingly, when discussing the rule relating to the employee's assumption of risk, he cites indifferently authorities in which the defendant was the plaintiff's employer and those in which he was a stranger.2


That he was quite justified in so doing cannot admit of doubt. The rule, that an employee who continues working in conditions known to him to be unsafe assumes the risk of those conditions, is the rule which is applied to a stranger who subjects himself to the same risk. For example: The plaintiff, a locomotive engineer, was injured by striking against an electric signal post, while leaning outside his locomotive and looking back to take a signal from the conductor. As the evidence showed that plaintiff knew the manner in which the road was constructed, and fully appreciated the danger attending his continuance in the unsafe conditions, he had assumed the risk and could not recover.30 In another case, the plaintiff, a voluntary spectator at a display of fireworks, was injured by the explosion of a bomb. He was held to have assumed the risk of the unsafe conditions in which he voluntarily continued, and, therefore, to have barred himself from recovery.31 A similar decision has

25 Beven, Negligence, 3 ed., 632 et seq.; "Volenti non fit Injuria," 8 Journal of the Soc. of Comp. Leg. N. S. 185.

26 1 Labatt, Master and Servant, chap. 20.

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3 B. & Ald. 304 (1820).

29 Ibid. 969.

30 Lovejoy v. Boston & Lowell Ry., 125 Mass. 79 (1878).

1 Scanlon v. Wedger, 156 Mass. 462, 31 N. E. 642 (1892), followed in Frost v.

Josselyn, 180 Mass. 389, 62 N. E. 469 (1902).

been made in New York against a voluntary spectator at an automobile race.32 While these spectator decisions may be open to criticism on the ground that the defendants were engaged in illegal exhibitions, it is believed that no one has intimated that the rule of assumption of risk, which defeated the plaintiffs, was adopted with the idea of protecting the interests of fireworks exhibitors and auto-racers, rather than those of the spectators; nor that it was due to the fact that the political influence of the latter class was less than that of the former; nor that its genesis can be traced to the judicial disposition to encourage the investment of capital in the industrial enterprises connected with fireworks and automobiles. Again the rule of assumption of risk which operates to defeat the employee who knowingly subjects himself to unsafe conditions, operates in the same way against a passenger riding on the front platform of a crowded electric car, knowing that there is a sign on the car stating a rule that "Passengers riding on the front platform do so at their own risk." 33 It operates, also, to defeat a pedestrian who voluntarily passes over an icy sidewalk, or street, knowing that it is dangerous, but believing that he can escape unharmed. He assumes the risk of the unsafe conditions.34

On the other hand, the rule does not operate to defeat the plaintiff, unless he assumes the risk; and it operates in the same way whether the particular plaintiff is a servant of the defendant or a stranger. To illustrate: A season-ticket holder on defendant's line of railway slipped on the steps leading down to the passenger platform and was injured. He knew that the steps were covered with snow, and somewhat slippery, and that he could have reached the platform by other steps. The jury found that he was not guilty of contributory negligence, and the court ruled that he did not assume the risk of the unsafe conditions, unless it was shown that "he freely and voluntarily, with full knowledge of the nature and

32 Johnson v. City of New York, 186 N. Y. 139, 78 N. E. 715 (1906), followed in Bogart v. City of New York, 200 N. Y. 379, 93 N. E. 937 (1911).

33 Burns v. Boston El. Ry., 183 Mass. 96, 66 N. E. 418 (1903), distinguishing cases where the defendant had waived the rule against standing on the platform.

Wilson v. City of Charlestown, 8 All. (Mass.) 137 (1864); Wright v. City of St. Cloud, 54 Minn. 94, 55 N. W. 819 (1893); Friday v. City of Moorhead, 84 Minn. 273, 87 N. W. 780 (1901); Howey v. Fisher, 122 Mich. 43, 80 N. W. 1004 (1899): "It is apparent from this testimony that the plaintiff knew of the risk of passing over this icy way, and assumed the risk of doing so. . . . The precise danger was before her, and she had it in mind at the time."

extent of the risk he ran, impliedly agreed to incur it." 35 This case was cited by the Supreme Court of Massachusetts as precisely in point, where the plaintiff was a servant of defendant and had been injured by falling on slippery steps as she was leaving defendant's mill at the end of her day's work:


"The rule which we are considering applies only when the plaintiff has voluntarily assumed the risk. . . . Mere knowledge of a danger will not preclude a plaintiff from recovering unless he appreciates the risk. . . . We are of the opinion that it cannot be said, as a matter of law, that the plaintiff in the present case, in attempting to go down the steps voluntarily assumed a risk which she understood and appreciated, and which resulted in the accident."

In a case between an employee and an employer, the Supreme Court of New Hampshire, when setting aside a nonsuit of plaintiff, said:

"One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without appreciating the danger. One cannot be said, as a matter of law, to assume a risk voluntarily, though he knows the danger and appre.. ciates the risk, if at the time, he was acting under such an exigency, or such an urgent call of duty, or such constraint of any kind, as in reference to the danger deprives his act of its voluntary character; or if, after discovering the master's neglect, he has no opportunity to leave the service before the injury is received." 37

It is submitted that the rule, as to assumption of risks incident to unsafe conditions, was not adopted with the idea of protecting the interests of the employer rather than those of the employed. On the contrary, it antedates labor litigation and always has been applied in accordance with the same principles, whether the plaintiff was a servant or a stranger.

Let us pass to a consideration of the remaining rule alleged to have had its origin in judicial favoritism for employers. In the passage heretofore quoted, it is formulated thus: "An employer is not liable to an employee for the damage caused by a co-servant." Perhaps the first comment that should be made is that "Anglo

35 Osborne v. London & Northwestern Ry., 21 Q. B. D. 220, 224 (1888).

36 Fitzgerald v. Conn. Riv. Paper Co., 155 Mass. 155, 159, 162, 29 N. E. 464 (1891). 37 English v. Amidon, 72 N. H. 301, 56 Atl. 548 (1903).

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