American law" does not contain and never has contained that unqualified rule.38 The reports are replete with cases where the employer has been held liable, and has been compelled to pay an employee, for damages caused by a co-servant. If the harm-doing co-servant is incompetent or reckless, and defendant knew or ought to have known this, and the harm to plaintiff resulted from such unfitness, the master is liable.39 He is liable, too, if the injury is due to an insufficient number of co-servants.40 Again, if plaintiff's injury is due to a co-servant's neglect to perform the duty assigned him by the defendant of promulgating proper rules for the conduct of the defendant's business, the latter is liable.41 So is he liable if the employee's injury is owing to a co-servant's failure to perform the duty assigned him of providing a safe working place for the plaintiff,42 or safe tools and machinery with which

38 See Lord Brougham's remark upon a similar misstatement of the rule by Lord Ardmillan: "But, my Lords, it is utterly unknown to the law of England, also." Bartonshill Coal Co. v. McGuire, 3 Macq. 300, 313 (1858).

39 Gilman v. Eastern Ry. Co., 10 All. (Mass.) 233 (1865); Metropolitan El. Ry. v. Fortin, 203 Ill. 454, 67 N. E. 977 (1903), affirming a judgment for $15,000 in the employee's favor; Walker v. Bolling, 22 Ala. 294 (1853); Cook v. Parham, 24 Ala. 21 (1853); Brown v. Levy, 108 Ky. 163, 55 S. W. 1079 (1900); Poirier v. Carroll, 35 La. Ann. 699 (1883), recovery for $2500; Laning v. N. Y. Cent. Ry., 49 N. Y. 521 (1872), sustaining a verdict for $10,000. Judge Folger's opinion is worthy of careful reading by anyone who would understand the conscientious striving of the judiciary to do its duty in this class of cases.

40 Flike v. B. & A. Ry., 53 N. Y. 549 (1873). Defendant had appointed sufficient brakemen to go with the train which parted and caused the injury, but one of them neglected to go. The negligence of the company consisted in not seeing to it that the train was sufficiently manned when it started, and it did not excuse itself by showing that if Loftus, the brakeman, had done his duty, the train would have been fully manned. The employer, not the co-employee of Loftus, assumed the risk of the latter's neglect of duty.

41 Han. & St. J. Ry. v. Fox, 31 Kan. 586, 596, 3 Pac. 320 (1884), affirming judgment for $10,000 in favor of employee; Pool v. Southern Pac. Ry., 20 Utah 210, 220, 58 Pac. 326 (1899), affirming judgment for $12,000 in favor of employee's administratrix; Madden v. Ry. Co., 28 W. Va. 610 (1886), sustaining verdict of $6000.

42 Kansas City, etc. Ry.v. Kier, 41 Kan. 661, 21 Pac. 770 (1899), recovery for $7000; Breckenridge Co. v. Hicks, 94 Ky. 362, 22 S. W. 554 (1893), judgment for $4000 in employee's favor affirmed; Snow v. Housatonic Ry., 8 All. (Mass.) 441, 447 (1864); Babcock v. Old Colony Ry., 150 Mass. 467, 23 N. E. 325 (1890); Donahue v. Boston & Me. Ry., 178 Mass. 251, 254, 59 N. E. 663 (1901), recovery for $6500; Balhoff v. Mich. C. Ry., 106 Mich. 606, 65 N. W. 592 (1895); Drymala v. Thompson, 26 Minn. 40, 1 N. W. 255 (1879); Henry v. Wabash West. Ry., 109 Mo. 488, 494, 19 S. W. 239 (1891); Cavanaugh v. O'Neill, 27 N. Y. App. Div. 48, 51, 50 N. Y. Supp. 207 (1898), affirmed without opinion in 161 N. Y. 657, 57 N. E. 1106 (1900); Chesson v. John L. Roper L. Co., 118 N. C. 59, 61, 23 S. E. 925 (1896); Calvo v. Railway Co., 23 S. C. 526

43

to work, or of properly warning him of danger attending the work.44 The authorities cited for the master's liability in such cases could be multiplied many times.

It is quite clear, therefore, that the quotation given above does not correctly state the fellow-servant rule. The master's exemption from liability to a servant for the negligence of a fellow servant is not unqualified. On the contrary it is conditioned upon his having performed his legal duties towards the plaintiff. The existing rule is often criticized, as throwing the entire risk of fellow service upon the employee. The foregoing authorities show that this criticism is unwarranted. Every large employer of labor takes the risk of his servants' negligence, even towards fellow servants, in doing numberless acts which he has deputed to them, and must necessarily depend upon them to do. That risk the much-abused common law fastens upon him. A servant does not assume the risk of a co-servant's negligence in providing unfit fellow servants, or an insufficient number of fit ones; nor in providing a safe place to work; nor in providing safe tools; nor in formulating proper rules; nor in giving due warning of danger. And these, as the law reports show, embrace a large proportion of the risks of fellow service.

Returning now to the fellow-servant rule, as thus limited, let us inquire whether there is any evidence to sustain the charge that it was "adopted with the idea of promoting the interests of the employer rather than those of the employed." It is to be. borne in mind that we are not now concerned with the wisdom or folly

(1885); Openshaw v. Railway Co., 6 Utah 132, 136, 21 Pac. 999 (1889), affirming judgment for plaintiff for $5000; Moon's Admr. v. R. & A. Ry., 78 Va. 745, 752 (1884); B. & O. Ry. v. McKenzie, 81 Va. 71, 77 (1885); McDonough v. Great Northern Ry., 15 Wash. 244, 257, 46 Pac. 334 (1896); Davis v. Cent. Vt. Ry., 55 Vt. 84 (1882), sustaining verdict for $5000.

43 Hough v. Railway Co., 100 U. S. 213 (1879); Northern Pac. Ry. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590 (1885), affirming judgment for $15,000 in employee's favor; Union Pac. Ry. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756 (1894), affirming s. c. 6 Utah 357, 23 Pac. 762, upholding employee's verdict for $10,000; Port Blakely Mill Co. v. Garrett, 97 Fed. 537 (1899), affirming judgment for $5000; Fuller v. Jewett, 80 N. Y. 46 (1880).

4 Tedford v. Los Angeles Tel. Co., 134 Cal. 76, 66 Pac. 76 (1901), sustaining verdict for $15,000; Daly v. Kiel, 106 La. 170, 30 So. 254 (1901), affirming judgment for $1500; Bjbjian v. Woonsocket R. Co., 164 Mass. 214, 41 N. E. 265 (1895); Brennan v. Gordon, 118 N. Y. 489, 23 N. E. 810 (1890); Kielley v. Belcher Silver Min. Co., 3 Sawy. (U. S.) 437 (1875); The Pioneer, 78 Fed. 600 (1897), sustaining a verdict for $5000.

of the rule, but with its genesis. Does it owe its existence to the political weakness of the employed and to the disposition of courts to encourage the investment of capital in industrial enterprises? Is it the expression of class selfishness by judges who were members of that class?

A satisfactory answer requires a careful examination of the leading cases on this topic. Such an investigation is somewhat tedious but it ought to yield safer results than the most brilliant speculation.

The first attempt under English common law to hold a master liable to a servant for the negligence of a co-servant, was made in Priestley v. Fowler.45 The plaintiff was injured by the breaking of a butcher's van on which he was riding pursuant to the directions of its owner, who was his master as well as the master of the "conductor" of the van. Plaintiff's counsel contended that there was "no valid distinction between this case and that of an ordinary coach passenger"; and that defendant was liable even though he did not know that the van was overloaded. This view was rejected by the court. Lord Abinger, speaking for a unanimous court,46 pointed out some of the absurd and inconvenient consequences which he believed would follow from the adoption of the principle contended for by plaintiff. Most of them relate to the everyday experience of the ordinary head of a family, and not one reveals any thought on the part of the judges, that their refusal to sustain this absolutely novel action would tend to encourage the investment of capital in industrial enterprises.

The next case in chronological order is Murray v. Railroad Company.47 Plaintiff, a fireman in defendant's employ, claimed to have been injured through the negligence of the engineer, and

45 3 M. & W. 1 (1837). Lord Abinger said, at p. 5, "It is admitted that there is no precedent for the present action by a servant against a master."

46 The court consisted of Lord Abinger, C. B., and Barons Parke, Bolland, Alderson and Gurney. The correlative duties of master and servant are referred to at p. 6: "The master is no doubt bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself."

47 1 McMul. (S. C.) 385 (1841). As Priestley v. Fowler is not referred to by counsel or judges, it is safe to conclude that the decision was not brought to the attention of the South Carolina court. The judges of this court were elected by the members of the two houses of the legislature, and held office during good behavior.

recovered a verdict of $1500, under the charge of the trial judge, that if the engineer did his duty so carelessly as to subject plaintiff to unnecessary danger which he could not avoid, the company would be liable. On appeal, the Court of Errors, by a vote of seven to three, held that the charge was erroneous and ordered a new trial. It may be noted, in passing, that the dissenting, as well as the prevailing, opinions agree that contributory negligence on the plaintiff's part would bar a recovery, and that he assumed "the ordinary risks and perils of the employment." Nothing can be found in any of the opinions indicative of judicial bias in favor of employers, nor does the argument for the defendant (which is printed in full) ask for any favors to his client or to the class to which that client belonged.48 The decision was placed upon three grounds: First, that there was no "precedent suited to the plaintiff's case, unless he stands in the relation of a passenger to the company." Second, that plaintiff's contention that he was a passenger, when injured, was unsound, and that he was not entitled to the rights of a passenger against the defendant. Third, that it was not incident to plaintiff's contract of hiring that the company should guarantee him against the negligence of his co-servants.

Next comes Farwell v. Boston & Worcester Ry.,49 in which the fellow-servant doctrine received its classical exposition in a carefully prepared opinion by Chief Justice Shaw. In this case plaintiff's counsel did not claim that his client was a passenger, as did counsel in Priestley v. Fowler and Murray v. Railroad Company.

48 1 McMul. (S. C.) 388-398. Defendant's counsel reminded the court that a correct decision in the case was of less account to the railroad than to the public. "The company can make its contracts with its servants so as to avoid liability, if the verdict should be sustained." Much of his argument is addressed to showing that public security would not be promoted by the doctrine contended for by the plaintiff. He lays much stress upon the novelty of the action. After stating that defendant warranted to plaintiff that its road was in ordinary repair, that its engine was good, and the engineer competent, and that it would be liable to him for an injury due to its fault in any of these respects, he adds, "But the company cannot be supposed to warrant that each servant shall always be watchful, and that no servant shall be injured by the negligence of another."

49 4 Met. (Mass.) 49 (1842). The members of the court were appointed by the Governor with the consent of the Council, to hold office during good behavior. The case was argued upon an agreed state of facts, one of which was that plaintiff received higher wages as an engineer than he had received as machinist. Another was that plaintiff when he entered defendant's employment knew the switchman, and knew that he was a careful and trustworthy servant.

In fact, he admitted that those cases were rightly decided, since the plaintiff "was jointly engaged in the same service with the other servant, whose negligence caused the injury" and therefore, it might reasonably be inferred that they took "the hazard of injuries from each other's negligence.". He insisted, however, that Farwell, as engineer, was engaged in a distinct employment from that of the switchman whose negligence caused plaintiff's injury, and that "a master, by the nature of his contract with a servant, stipulates for the safety of the servant's employment, so far as the master can regulate the matter." If we pass to the argument for defendant 50 and to the opinion of the court, we shall find no more trace of class partisanship than in the argument by plaintiff's counsel. The plaintiff was defeated because there was no precedent for his action, and because "considerations as well of justice as of policy" precluded the court from accepting the rule contended for by the plaintiff. It could find no ground upon which to base an implied promise of indemnity by the master to a servant against the negligence of fellow servants, where the master was without fault. The liability of a master to strangers for the negligence of a servant stands on its own reasons of policy. To extend that liability to co-servants would not conduce to the general good. The plaintiff had voluntarily left a position as machinist, and entered upon his employment as engineer, for higher wages, and with full knowledge of the risks incident to the latter employment. The injury must be deemed the result of an accident, not of a breach of duty owing by the defendant to the plaintiff. Such is the view of the court.

Justice Holmes has expressed the opinion that "few have lived who were Chief Justice Shaw's equals in their understanding of the grounds of public policy to which all laws must ultimately be referred. It was this which made him, in the language of the late Judge Curtis, the greatest magistrate which this country has produced." 51 It may be that the great magistrate's "understanding of the grounds of public policy" failed him in the Farwell case;

50 4 Met. (Mass.) 53-55. Counsel for defendant contended that the risk of passengers would be increased if the principle contended for by plaintiff was adopted, for it would diminish the caution of railroad servants. He also insisted that the plaintiff was paid higher wages because of the increased risk which he had assumed, including the risk of co-servants' negligence.

51 The Common Law, 106. The italics are the author's.