that his conceptions of "justice and policy" and of the principles which best "conduce to the general good," were egregious blunders; but it is certain that he nowhere betrays any disposition to formulate a rule which should protect the employer rather than the employed, or one which should encourage the investment of capital; nor does he appear to be swayed by the political influence of the employer class. Indeed, he did not understand that he was taking part in the adoption of a new rule at all. He was simply expounding established principles of the common law.

That Chief Justice Shaw did not blunder in the Farwell case was the accepted view of the bench and bar for a generation. Not only was his opinion treated in this country as unassailable, but it received the rare compliment of being followed by the House of Lords and reprinted in a volume of its reports.52 Two years after the Farwell decision, the Supreme Court of New York declared that it "entertained no doubt of its correctness." 53 A few years. later it was unhesitatingly followed by the New York Court of Appeals.54 Meanwhile the Supreme Court of Georgia accepted the doctrine of the Farwell case but declined to apply it against the owner of a slave, who had been killed by the negligence of defendant's free servants, on the ground that "slaves dare not intermeddle with those around, embarked in the same enterprise with themselves." 55 Later, it was not only accepted but applied in that state in the case of a free fellow servant.56

The Supreme Court of Ohio was divided in the first fellow-servant case that came before it,57 but later accepted the Farwell doctrine, with the qualification that the servants are engaged in a

53 Brown v. Maxwell, 6 Hill (N. Y.) 592 (1844). The members of this court were appointed by the governor.

54 Coon v. Syracuse & Utica R. Co., 5 N. Y. 492 (1851), affirming s. c. 6 Barb. (N. Y.) 231 (1849). The judges of these courts were elected by popular suffrage. At p. 495 of 5 N. Y. Gardiner, J., said: “To the elaborate opinion of Chief Justice Shaw, nothing can be added without danger of impairing the force of his reasoning." In the court below, Pratt, J., remarked, "The correctness of these decisions [in the Farwell and Priestley cases] was not seriously questioned by the able counsel for the plaintiff, upon the argument of this cause." 6 Barb. (N. Y.) 236.

55 Scudder v. Woodbridge, 1 Kelly (Ga.) 195 (1846).

56 Shields v. Yonge, 15 Ga. 349 (1854). The members of this court were elected for three years by popular suffrage.

57 Little Miami R. Co. v. Stevens, 20 Oh. 415 (1851). The judges were appointed to office for a term of seven years, by joint ballot of the two houses of the legislature.

common employment and are of equal rank.58 The doctrine was accepted also by the Supreme Court of Louisiana in 1851,59 by the Alabama Supreme Court in 1853,60 and the following year by the Supreme Court of Pennsylvania in an opinion of commanding ability.61 During the same year the Illinois Supreme Court accepted it,62 followed a few months later by the highest court of Indiana.63 Whether the reasons assigned by these courts, and quoted in the

58 Cleveland, etc. R. Co. v. Keary, 3 Oh. St. 201 (1854); Whaalan v. Mad River, etc. R. Co., 8 Oh. St. 249 (1858). The judges, during this period, were elected by popular suffrage for terms of seven years.

59 Hubgh v. New Orleans & C. R. Co., 6 La. Ann. 495 (1851), questioned by a part of the court in Camp v. Church Wardens, 7 La. Ann. 321 (1852), but now admitted to be correct. Weaver v. Goulden Logging Co., 116 La. 467, 471, 473, 40 So. 798 (1906). The judges in 1851 and 1852 were elected by white male suffrage. In the Camp case will be found a full discussion of French decisions bearing on the topic, as well as of the provisions of the Louisiana Code.

60 Walker v. Bolling, 22 Ala. 294 (1853), although the defendant was held liable because of the unfitness of the negligent co-servant. The judges were elected for a term of six years by the joint ballot of both houses of the legislature.

61 Ryan v. Cumberland Valley R. Co., 23 Pa. St. 384 (1854). Said the Court: "The argument that the law implies a warranty that one servant shall not be injured by the carelessness of another, is only another way of stating the proposition that the law imposes the duty of protection on the master, which implies the relation of dependence on the part of the servant. . . . Such a rule could have very little application to great corporations, for they would immediately act on the maxim, conventio vincit legem, and provide against it in their contracts. But it would live to embarrass the more private and customary relations, and be the source of abundant litigation." The judges were elected by popular suffrage for a term of fifteen years.

62 Honner v. Ill. Cent. R. Co., 15 Ill. 550 (1854); Ill. Cent. R. Co. v. Cox, 21 Ill. 20 (1858). After citing many authorities in support of the doctrine, the court expressed its approval of it as correct upon principle, declaring that it operated to make servants prompt and vigilant in reporting unfit or negligent co-servants. It was in accord, too, with the implied contract of the servant who calculates the hazards incident to a business in which he engages. “This we see every day — dangerous service generally receiving higher compensation than a service unattended with danger or any considerable risk of life or limb." The judges were elected by popular suffrage.

63 Madison, etc. R. Co. v. Bacon, 6 Ind. 205 (1855): "It is considered that public policy requires that servants engaged in a common employment should not have an action against their principal for injuries resulting from the negligence of one or more of such servants; because the tendency of such a doctrine is to make them anxious and watchful and interested for the faithful conduct of each other, and careful to induce it; while the opposite doctrine would tend in a different direction. The safety and welfare of the public, therefore, demand the establishment of the non-liability principle on the part of the employer in such cases; while, when established, it can work no injury to the servant, because his entering upon the service is voluntary, is with a knowledge of its hazards, and with a power and right to demand such wages as he shall deem compensatory." The judges of the court were elected by popular suffrage.

notes, are sound or unsound when tested by modern economic theories, is quite irrelevant to our present inquiry. They were the reasons which influenced judicial action.

They were approved by the Supreme Court of Vermont, in a case which also held the master liable to a servant for injury due to the failure of other servants to inspect and repair a defective engine.64 These reasons were repeated by the Supreme Court of Maine, when declaring that

"at common law an action for damages by a servant for an injury occasioned by the carelessness of a fellow servant in the same service, cannot be maintained against their common employer unless there be some contributing fault on his part." 65

66

They appear again in a Delaware case, as supporting "a general principle of law," as they do in a North Carolina case, the following year, which calls attention, also, to the oft-noted fact that there was no common-law precedent for such an action as the plaintiff had brought.67

The Supreme Court of New Hampshire subjected the fellowservant doctrine to a very careful study and reached the conclusion that

"the law on this subject is not peculiar to common carriers, railroads, or extensive enterprises. The responsibilities of the defendants, in this case, and of the individual who hires two laborers in harvest, or two carpenters to erect a staging and shingle his house, are to be determined by the same legal tests. . . . The servant has agreed to bear, and is paid for bearing the risks incident to the service; the stranger has not made such an agreement, and is not paid for bearing such risks." 68

64 Noyes v. Smith, 28 Vt. 59 (1855). The judges were chosen by the two houses of the legislature and the council for a term of two years. See Fox v. Sandford, 4 Sneed (Tenn.) 36, 47 (1856). Judges were elected by white male suffrage.

65 Carle v. Bangor, etc. Canal & R. Co., 43 Me. 269 (1857). The judges were appointed by the governor with the consent of the council for four years.

66 Flinn v. Philadelphia, etc. R. Co., 1 Houst. (Del.) 469, 496 (1857). Judges appointed by the governor and held office during good behavior. The doctrine is again recognized in Taylor v. Bush & Sons Co., 6 Pennewill (Del.) 306 (1907).

67 Ponton v. Wilmington, etc. R. Co., 51 N. C. 245 (1858). Judges were appointed by the governor to hold office during good behavior.

68 Fifield v. Northern Railroad, 42 N. H. 225, 238, 239 (1860). The defendant's demurrer was overruled, as plaintiff charged that his injury was due to defendant's failure to provide a safe place to work as brakeman. For such failure, whether through the negligence of a manager or a co-servant, defendant was liable. Judges were appointed by governor and council.

Wisconsin shows considerable judicial vacillation on this subject. In Chamberlain v. Mil. & Miss. R. Co.69 the Supreme Court approved a charge of the trial court laying down the prevailing doctrine. When the case came before the court a second time, a majority rejected that doctrine,70 but it was reinstated by a divided court a few years later." This last change of view was induced, said Dixon, C. J., by

"the unbroken current of judicial opinion. At the time the second decision was announced, it was supposed that its doctrine had been or would be sustained by the courts of Ohio and Indiana; but by the reports which have more recently reached us it appears that they hold the very opposite, so that now the case (in 11 Wis.) stands alone in opposition to the decisions of all the courts of both countries, and I think, with Justice Cole, that it must be overruled."

From this time on the current of judicial opinion in the state courts of last resort continues unbroken, although individual judges criticized the accepted doctrine now and then; and in a few jurisdictions it suffered minor modifications.72

69 7 Wis. 425 (1859).

70 11 Wis. 238 (1860).

71 Moseley v. Chamberlain, 18 Wis. 700, 705 (1860). The judges were elected by popular suffrage.

72 McDermott v. Pacific R. Co., 30 Mo. 115 (1860). Judges were elected by white male suffrage. Sullivan v. Miss. & Mo. R. Co., 11 Ia. 421, 427 (1860). Judges elected by popular suffrage. Michigan Cent. R. Co. v. Leahey, 10 Mich. 193, 199 (1862). Judges elected by popular suffrage. O'Connell v. B. & O. R. Co., 20 Md. 212, 221 (1863). Judges appointed by the governor with the consent of the senate. Harrison v. Central R. Co., 31 N. L. J. 293, 296 (1865). Judges appointed for six years by the governor with the consent of the senate. Louisville & Nash. R. Co. v. Collins, 63 Ky. 114 (1865). Doctrine limited to co-equal servants. Judges elected for eight years by white male suffrage. Burke v. Norwich, etc. R. Co., 34 Conn. 474 (1867). The soundness of the doctrine is questioned, but the court accepts it as well established. Judges appointed by the general assembly for eight years. Foster v. Minn. Cent. R. Co., 14 Minn. 360, 362 (1869). Judges elected by popular suffrage. Dow v. Kan. Pac. Ry. Co., 8 Kan. 642, 645-646 (1871). The fellow-servant rule is approved as in accordance with "both authority and reason" and as securing the personal safety of passengers and "insuring the most skillful and trustworthy agents and servants." Judges elected by popular suffrage. Yeomans v. Contra Costa, etc. Co., 44 Cal. 71, 81 (1872). Judges elected by popular suffrage. N. O., J. & G. N. R. Co. v. Hughes, 49 Miss. 258 (1873). The fellow-servant doctrine, after a careful examination of authorities, is approved, because it safeguards the public without injustice to the employee. Judges appointed by the governor with the consent of the senate. Summerhays v. Kan. Pac. R. Co., 2 Colo. 484, 488 (1875). Judges elected by popular suffrage. Price v. Houston, etc. Nav. Co., 46 Tex. 535, 537 (1877). Judges elected by popular suffrage. Little Rock, etc. R. Co. v. Duffey, 35 Ark. 602, 613 (1880). Judges elected by popular suffrage.

The doctrine appears to have been brought before the United States Supreme Court for the first time in 1873, but the court found its discussion unnecessary in either of the pending cases. In one,73 the relation of servant and master did not exist between the plaintiff and defendant, at the time of injury; and in the other,74 the plaintiff was the father of the injured servant, and "the injury did not occur while the boy was doing what his father engaged he should do.” That the court felt no partisanship for corporation employers, however, is apparent from the following language in the second case:

etc.

Chicago, etc. Ry. Co. v. Lundstrom, 16 Neb. 254 (1884). Modifies the prevailing doctrine by permitting a servant to recover against the master for negligence of a superior servant. Judges elected by popular suffrage. Willis v. Oregon Ry. & Nav. Co., 11 Or. 257, 263, 4 Pac. 121 (1884). Judges elected by popular suffrage. Moon's Admr. v. R. & A. R. Co., 78 Va. 745 (1884). Judges elected by joint assembly of the two houses. Madden's Admr. v. C. & O. Ry. Co., 28 W. Va. 610 (1886). General doctrine accepted as one of common law, but does not apply when the negligent coservant acts in a superior capacity to the plaintiff in regard to some duty due to the master. Judges elected for twelve years by popular suffrage. Gaffney v. N. Y., R. Co., 15 R. I. 456, 459, 7 Atl. 284 (1887). Judges elected by the general assembly and hold office during its pleasure. Openshaw v. Utah, etc. R. Co., 6 Utah 132, 21 Pac. 999(1889); Daniels v. Union Pacific Ry. Co., 6 Utah 357, 23 Pac. 762 (1890); Dryburg v. Mercer Gold Mining, etc. Co., 18 Utah 410, 55 Pac. 367 (1898). In the last cited case the court reviews the history of the fellow-servant doctrine, criticizes Chief Justice Shaw's opinion, and concludes that fellow servants are those who "are working together at the same time and place and to a common purpose," applying Rev. Stat. 1343. The cases in 6 Utah were decided by judges appointed by the President; that in 18 Utah by judges elected by popular suffrage. The Daniels case was affirmed by the Supreme Court, 152 U. S. 684, 14 Sup. Ct. 756 (1894), on the ground that the negligent servant had failed to provide safe instrumentalities for the plaintiff. McBride v. Union Pac. Ry. Co., 3 Wyo. 247, 21 Pac. 687 (1889). Judges appointed by the President. Parrish v. Pensacola, etc. R. Co., 28 Fla. 251, 278 (1891). Judges elected by popular suffrage. Ell v. Northern Pac. R. Co., 1 N. D. 336, 48 N. W. 222 (1891). The opinion of Corliss, C. J., gives unqualified approval of the fellow-servant doctrine as just, wise and beneficial to the public at large, as well as a correct deduction from common-law principles. Judges elected by popular suffrage. Lutz v. Atl. & Pac. R. Co., 6 N. M. 496, 30 Pac. 912 (1892). Accepts the doctrine without hesitation as sound common law, and holds that it had not been affected by §§ 2308-2310 of Comp. Laws. Judges appointed by the President. Gates v. Chic., Mil. & St. P. R. Co., 2 S. D. 422, 50 N. W. 907 (1892). Judges elected by popular suffrage. Zintek v. Stimson Mill Co., 6 Wash. 178, 32 Pac. 997, 33 Pac. 1055 (1893). Judges elected by popular suffrage for six years. McDonough v. Great Northern Ry. Co., 15 Wash. 244, 46 Pac. 334 (1896), but sustaining recovery because defendant had failed to provide a safe place to work. Goodwell v. Mont. Cent. Ry. Co., 18 Mont. 293, 45 Pac. 210 (1896). Judges elected by popular suffrage. Ruemmeli-Braun Co. v. Cahill, 14 Okl. 422, 79 Pac. 260 (1904). Judges appointed by the President.

73 Packet Co. v. McCue, 17 Wall. (U. S.) 508 (1873).

74 Railroad Company . Fort, 17 Wall. (U. S.) 553, 557-558 (1873).