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•Acts 1897, ch. 415, sec. 14.

» People V. Coler, 106 N.Y. 144. 59 N.E. 776



120 LAW OF THE EMPLOYMENT , OP LABOR

ferent nature, but falling under the ban of unconstitutionality
like the rest, was a law of Michigan providing for the licensing
of barbers, but withholding licenses from aliens,^ the law being
declared repugnant to the provisions of the fourteenth amend-
ment.2 Since neither in public employments nor in those regu-
lated by the state can such discriminations be supported, a
fortiori, they would fail in efforts to regulate purely private
contracts.

There is, however, a law of this class which, being enacted by
the Congress of the United States on a subject as to which it
admittedly has authority to act, has been uniformly sustained
and enforced, i.e., the law prohibiting the importation of aUen
contract labor. ^ State laws bearing on the subject in some
aspects have been passed in a few cases. Thus a law of Dela-
ware provides for contracts by state agents with laborers in
foreign countries for importation for agricultural employment,*
while laws of Virginia* and Wyoming® declare that contracts
with alien laborers shall be valid in those states for limited
periods. A statute of Indiana prohibits the importation of
aliens under contract.'^ Inasmuch as the whole matter falls
within the powers of Congress, all state legislation in conflict
with federal laws is pro tanto void.

A law that favors local mechanics in a matter not involving
the use of public funds is one requiring railroads operating in
the state to maintain repair shops therein for the repair and

lActs 1899, No. 212.

> Templar v. Board, 131 Mich. 254, 90 N.W. 1058.

» 34 Stat. 898. Chinese Exclusion Case, 130 U.S. 581, 9 Sup. Ct. 623 ; Lees
V. U.S., 150 U.S. 476, 14 Sup. Ct. 163.

* Acts 1907, ch. 116. » Code, sees. 44-48.

• R.S., sec. 2520. ' A.S., sees. 7079 et aeq.



RESTRICTIONS ON EMPLOYEES 121

rebuilding of its rolling stock.^ The validity of such laws, in
view of the decisions above cited, is to say the least doubtful.
Private employment is touched upon by other laws directed to
the subject of alien labor, as one requiring employers of aliens
to deduct the taxes due from such employees from their wages ; ^
and laws looking to the protection of the wages of aliens as a
class of people ignorant of the language and customs of the
country, and thus easily liable to imposition.' A law that
taxed the employers of ahen laborers, allowing them to deduct
the tax from the wages of such employees,^ was declared uncon-
stitutional as violative of the guarantees of the fourteenth
amendment, such a statute being a discrimination against the
employment of aliens, whether the tax be deducted from their
wages or paid by the employer himself.^

A construction of statutes that affects aliens adversely is
that which deprives non-resident beneficiaries in some juris-
dictions of the benefits of the so-called Lord Campbell's Act, or
the statute which grants to the heirs or personal representatives
of persons killed by the negligence of another a right of recovery
against the responsible person. This is not strictly a labor law,
but is of general application, and has gone far to ameliorate the
condition of the surviving families of the victims of industrial
accidents. Where the dependents of a deceased alien workman
are non-residents, the courts of some states deny to them the
benefits of this law on the ground that the legislature acts for

« La., Acta 1908. No. 296; Texas, Acts 1909, eh. 33,

« Pa., Acts 1897, ch. 108.

« Conn., G.S., sec. 4607; Wyo., R.S., sec. 2521.

* Pa.. Acts 1897, No. 139.

• Eraser v. McConway & Torley Co., 82 Fed. 257 ; Juniata Limestone Co. •.
Fagley, 187 Pa. St. 193, 40 Atl. 977.



122 LAW OF THE EMPLOYMENT OF LABOR

citizens, or at most for residents of the state, and that its powers
do not extend beyx)nd its borders ; also that its own citizens
employed abroad would not be afforded protection in like cir-
cumstances,^ The more common, and certainly the more
humane view, is that the negligent employer should be called
upon to repair to some extent the injury caused by his negh-
gence, and that the remedial nature of the statute was not in-
tended to be restricted by the incident of the residence of the
beneficiary.^

Section 57. Convict Labor. — An attempt to modify com-
petition with local labor, and specifically with free labor, is made
in many states^ by laws limiting the labor of convicts to the
manufacture of supplies for the use of the state or to labor on
public works and ways, or by requirements limiting the number
of convicts that shall be employed in the manufacture of desig-
nated articles or classes of articles, or prohibiting the manufac-
ture of certain kinds of goods altogether, by forbidding the use
of any machinery in manufacture except such as is operated by
hand or foot power, and by requiring that convict-made goods
shall be so marked, or that dealers in them shall be specially
licensed. Such laws are not, strictly speaking, labor laws, as
they affect neither employer nor employee in their relations to
each other, but are of an economic intent, seeking to modify
the effects of the competition of convict with free labor. In so

1 Deni v. P.R. Co., 181 Pa. 525, 37 Atl. 558 ; McMillan v. Spider Lake S. & L.
Co., 115 Wis. 332,91 N.W. 979.

* Mulhall V. Fallon, 176 Mass. 266, 57 N.E. 386 ; Alfson v. Bush, 182 N.Y.
393, 75 N.E. 230 ; Kellyville Coal Co. v. Petraytis, 195 111. 215, 63 N.E. 94 ; Low
Moor Iron Co. v. Bianca's Adm'r., 106 Va. 83, 55 S.E. 532; Renlund v. Mining
Co., 89 Minn. 41, 93 N.W. 1057.

' 111., R.S., ch. 108; Minn., R.L.. sees. 5446-5449 ; N.Y., Con. L., ch. 31, art.
13; Ohio, A.S., sees. 7388-85, 4400-1 to 4400-10; Mass., R.S., ch. 225, etc.



RESTRICTIONS ON EMPLOYEES 123

far as they relate only to the employment and management of
convicts as laborers, the public has no grounds, as a rule, for
intervening; but where the rights of citizens are affected, as
by restrictions on the sale of goods purchased from prison manu-
factories, or made in prisons under contract, a question as to
restrictions on commerce arises. This is particularly the case
where the goods are transported outside the state of manufac-
ture, and thus acquire a status as articles of interstate commerce,
which is strictly and exclusively under the control of the federal
government. It was on this basis that laws of New York ^ and
Ohio,2 discriminating against goods of prison manufacture,
were declared unconstitutional.'

> Acts 1894, ch. 698 ; Acts 1896, ch. 931. » Acts 1894, p. 346.

' People V. Hawkins, 85 Hun. 43, 32 N. Y. Supp. 624 ; same case, 157 N.Y. 1, 51
N.E. 257 ; Arnold v. Yanders, 56 Ohio St. 417, 47 N.E. 50.



CHAPTER VII

THE LIABILITY OF EMPLOYERS FOR INJURIES TO THEIR
EMPLOYEES

Section 58. What Law Controls. — Although the English
common law lies at the foundation of our doctrine of employers'
liability, this doctrine is continually undergoing change, both
by the rulings of state and federal courts and by the enactment
of numerous statutes passed with a view to a more exact defi-
nition of the rights of the employee or to some amehoration of
his condition in other respects. The principles of the common
law are so differently interpreted in the various jurisdictions
that state names are given to certain applications of them, in-
dicative of a locally recognized view which is not in accord with
the generally accepted construction of the law, while the statutes
range in form and effect from a mere restatement of the common
law to an abrogation of it in some more or less inclusive degree,
and the enactment of rules varying considerably both from it
and from the statutes of other states.

Section 59. Duty of the Employer to Exercise Care. — The
two principal factors of the problem of liability are the duty of
the employer to protect his employee in the discharge of the
duties of his employment, and the assumption by the employee
of the risks involved in the undertaking in which his contract
of employment engages him. The duty of the employer is first

124



LIABILITY OF EMPLOYERS FOR INJURIES 125

considered, but it will be found impossible to discuss it without
constantly bearing in mind the modifications that result from
the existence of the complementary obligations that rest upon
the employee.

The briefest statement of the rule governing the employer is
that he is required to use due care for the safety of his employees
while they are engaged in the performance of their work. This
is taken to include all reasonable means and precautions, the
facts in each particular case being taken into consideration. If
such provisions have been made as a reasonably prudent man
would supply if he himself were exposed to the dangers of the
servant's position, no negligence would appear. In the case of
corporations the Supreme Court fixes the duty at the use of such
caution and foresight as a corporation controlled by careful,
prudent officers ought to exercise.^

Though the courts of review have condemned any instruc-
tions that would tend to charge the employer with a higher
degree of care than that which may be defined as ordinary, the
measure is not an absolute one, but is proportioned to the
dangers to which the employee is exposed. The ordinary in-
cidents of railroading, mining, and certain classes of manufac-
turing are in themselves, in comparison with general employ-
ments, unusually dangerous; and so of a large railroad yard
as compared with a smaller one, an express train as compared
with a freight train, or a gaseous mine with one in which no such
dangers exist. In such cases as these, or when temporarily
abnormal conditions prevail, ordinary care is advanced far
beyond the requirements of the less dangerous conditions. As
stated by the Supreme Court in a consideration of this question,

» Wabash R. Co. v. McDaniels, 107 U.S. 454. 2 Sup. Ct. 932.



126 LAW OF THE EMPLOYMENT OF LABOR

occupations, no matter how important, if necessarily dangerous,
should be prosecuted only after the adoption of all reasonable
precautions known to science. The necessary attendant danger
should operate as a prohibition to the prosecution of such under-
takings without such safeguards, and the neglect to provide all
known and readily obtainable appliances will be regarded as a
proof of culpable negligence.^ On the other hand, care may
lawfully be relaxed if the risk is unusually slight or if a device
is for a specific and transitory use. The general rule as to care
is qualified by the youthfulness or inexperience of an employee,
a greater degree of care being commonly required for the pro-
tection of such persons ; nor is the master relieved by the fact
that a servant of tender years misrepresented his age in order to
secure the employment.^

Section 60. Place and Instrumentalities. — In accordance
with the rule as to due care, the obligation rests on the master
to supply tools and appHances that are reasonably safe for the
intended use and reasonably well adapted to perform the work
in contemplation. These must be provided at the place of use,
or at a place of such ease of access as to be reasonably procur-
able.

Closely related is the duty to provide a safe place to work and
proper material for use, the measure still being not absolute, but
reasonable or adequate safety. The distinction between place
and appliance is not an easy one to draw, though the courts are
stricter in their requirements as to the former than to the latter.
Thus, if a scaffold furnished by an employer be regarded as a
place to work, he is responsible not only for the materials sup-

1 Mather v. RiUston, 156 U.S. 391, 15 Sup. Ct. 464.

* Am. Car & Foundry Co. v. Armentraut, 214 111. 509, 73 N.E. 766.



LIABILITY OF EMPLOYERS FOR INJURIES 127

plied, but also for the construction and maintenance ; while if
it be viewed only as an appliance, he must make reasonable
provision therefor; but its insufficiency, if such there be, may be
laid to the account of the fellow workmen of an injured em-
ployee, or perhaps to his own negligence in erection.^

The doctrine that the employer is bound to safeguard his
employees from exposure to needless and unreasonable risks is
subject to the general qualification that one has the right to
carry on a business which is dangerous, either in itself or be-
cause of the manner in which it is conducted, provided it does
not interfere with the rights of others, without incurring liability
to a servant who is capable of contracting and who knows the
dangers attendant on employment in the circumstances.^ A
brief statement of the rule is that the employer has a right to
exercise a reasonable judgment and discretion in the conduct
of his affairs, and it is said that it would be a very extraordinary
case indeed in which this right would be interfered with.' This
does not, however, permit the use of unreasonably dangerous
appliances nor those which are in themselves defective or so
obsolete and inferior that their adoption or retention would of
itself indicate negligence,'' though the question is held to be one
not of comparative safety, but of reasonable safety. No fixed
rule of liability is possible, therefore, in this respect, each case
being of necessity decided on its own merits.

Section 61. Standards of Care Fixed by Statute. — Where a
standard is fixed by statute, as for the safeguarding of the opera-

» Butler V. Townsend, 126 N.Y. 105, 26 N.E. 1017 ; Hovcland v. National
niowor Works. 134 Wis. 342, 114 N.W. 795.

» Tuttle V. Detroit, etc., Ry., 122 U.S. 189, 7 Sup. Ct. 1166.

'Tuttlc V. Detroit, etc., Ry., supra.

* Choctaw, O. & G. R. Co. v. McDade, 191 U.S. 64, 24 Sup. Ct. 24.



128 LAW OF THE EMPLOYMENT OF LABOR

tions of mining, the provision and maintenance of fire escapes,
of guards for dangerous machinery, or of safety couplers and
other devices and appliances on railway trains, railroads, etc.,
the violation of such statutes resulting in the injury of any
person entitled to be protected thereby is construed by the
better authority to be an act of negligence, though it is some-
times held to be only evidence of negligence.^ That the failure
to comply with the statute is negligence would seem hardly to
be disputable, since, as was said in the Mosgrove case cited
above, "every person, while violating an express statute, is a
wrongdoer, is ex necessitate negligent in the eyes of the law";
or, as an English judge phrased the same rule, "where an abso-
lute duty is imposed on a person by statute, it is not necessary,
in order to make him liable for breach of that duty, to show
negHgence."

In a number of cases, the laws making such requirements
provide in terms that a failure to comply therewith makes an
employer hable in damages for all injuries caused by such fail-
ure, which is but a declaration of the rule laid down in the quo-
tations given above. In other cases the statute only provides a
penalty for its violation, and does not in terms give an injured
employee a right of action, though the injury may be traceable
to the omission of the device prescribed by the law. The weight
of authority gives a right of action in such cases.^ According
to the rule of common law that the employee does not assume

1 Compare Mosgrove v. Zimbleman Coal Co., 110 Iowa 169, 81 N.W. 227;
Krause v. Morgan, 53 Ohio St. 26,40 N.E. 886 ; St. Louis, I. M. & S. R. Co. v.
Taylor, 210 U.S. 281, 28 Sup. Ct. 616, with Pitcher v. New York, etc., R. Co.,
127 N.Y. 678, 28 N.E. 136 ; Jupiter Coal Min. Co. v. Mercer, 84 111. App. 96.

» Harrod v. Latham, 77 Kans. 466, 95 Pac. 11 ; Freeman v. Paper Mill Co., 61
Hun 125, 15 N.Y. Supp. 657 ; Klatt v. Lumber Co., 97 Wis. 641, 73 N.W. 503.



LIABILITY OP EMPLOYERS FOR INJURIES 129

the risk of his employer's negligence,^ it would follow that in a
suit for damages where a statute had been violated, the em-
ployer would be debarred from pleading that the employee had
assumed the risk of the injury, and it has been so held,^ though
not uniformly.' Here again statutes have been enacted in
support of what appears to be the better rule, and the employer
violating the statute cannot plead assumption of the risk by the
injured employee/ It has even been held that the negligent
employer could not offer to prove that the employee was guilty
of contributory negligence,^ and this doctrine too has been
enacted into law in a few instances.®

Compliance with statutory regulation will not operate as a
defense where the conditions are still so dangerous as to support
a charge of negligence against the employer.'' On the same
basis, it has been held, where the statute prescribes the condi-
tion in which a working place is to be maintained, that it is not
sufficient that the employer has put the matter into the hands
of a subordinate to attend to, but he must perform or have
performed the specific thing required by the statute if the
charge of negligence is to be avoided.*

» See sec. 72.

» Davis V. Mercer Lumber Co., 164 Ind. 413, 73 N.E. 899 ; Landgraf r. Kuh,
188 111. 484. 59 N.E. 501 ; Jones v. Caramel Co., 225 Pa. 644. 74 .A.tl. 613.

•Bodell V. Brazil Block-Coal Co., 25 Ind. App. 654, 58 N.E. 856; Sutton v.
Bakery Co., 135 Iowa 390, 112 N.W. 836; Knisley v. Pratt, 148 N.Y. 377. 42
N.E. 986.

• Iowa, Acts 1907, ch. 181 ; Ohio, Gen. Code, sec. 6243 ; N.Y., Acts 1910, ch.
352 ; also provisions restricted in application to the statutes containing them, in
many other states.

» Kellyville Coal Co. v. Strine, 217 111. 516, 75 N.E. 375.

• III., Acts 1905, p. 350, sec. 9 ; Miss., Code, sec. 4051 ; Mo., Acts 1907, pp.
181, 182.

' Chesapeake & O.R. Co. v. Rowscy's Adm'r., 108 Va. 632, 62 S.E. 363.

• Sommcr v. Carbon Hill Coal Co., 89 Fed. 54.

K



130 LAW OF THE EMPLOYMENT OF LABOR

Section 62. Repair and Maintenance. — The same care is
required of the master in maintaining as in furnishing safe and
suitable appliances.^ Inasmuch, however, as the progress of
work and the use of tools produce constantly changing condi-
tions, the doctrine that reasonably safe places and appliances
must be provided is frequently modified by the statement that
the duty has been discharged when ordinary or reasonable care
has been exercised in the effort to make such provision.^ The
continued employment of tools that are so worn as to increase
the danger of their use will in general entail Hability on the
employer. If, however, the danger is an obvious one, the em-
ployee, continuing to work with a knowledge of the danger and
without complaint, will be considered to have assumed the risk,
and in case of injury has no recovery; nor will liability attach
until the employer has or reasonably could have information of
the defect requiring repair.

An important decision by the Supreme Court puts at rest a
question on which opinions differed, i.e., as to the standard of
care to be exercised in cases where a statutory duty was pre-
scribed. It had been held that the common law rule was not
superseded by the federal statute providing for the equipment
and maintenance of safety couplers on railroad cars, the court
ruling that the use of reasonable and ordinary care and diligence
relieved the employer,^ while in another case in which the same
law was under consideration, it was ruled that the duty of keep-
ing the appliances in order was an absolute one,* a view that was

1 Moore v. Wabash, St. L. & P. R. Co., 85 Mo. 588.

« Anderson v. Michigan C. R. Co., 107 Mich. 591, 65 N.W. 585; Reed v.
Stockmyer, 20 C. C. A. 381, 74 Fed. 186.

s Missouri P. R. Co. v. Brinkmeier, 77 Kans. 14, 93 Pac. 621.

* Delk V. R. Co. See St. Louis, etc., R. Co. v. Delk, 158 Fed. 931, 934 (C. C. A.).



LIABILITY OF EMPLOYERS FOR INJURIES 131

rejected by the appellate court. A similar case reached the
Supreme Court, where it was held that the duty was an absolute
one, and that deviation from the standard was negligence, the
rule of "reasonable care" having been abrogated by the statu-
tory requirement as to adjustment and repair.^

Section 63. Customary Method or Use. — The employer is
not Uable to an employee for an injury incurred by a departure
from the customary method of performing work or by leaving
the place of his employment to work in some other department
unless on instructions from a properly authorized representa-
tive.^ So if a more dangerous method or place of work is chosen
when one less dangerous was available, the resultant injury, if
any, does not charge the employer with liability.' The same
rule applies where an instrumentality is put to a different use
by the employee from that for which it was intended, with a
resultant injury to himself.*

Section 64. Inspection. — The duty of making repairs nec-
essarily involves the duty of discovering the need for them as it
may arise, which entails the duty of inspection. The inspection
required for maintenance differs somewhat from that necessary
or presumed at the time a new plant or new tools are first brought
into use. As to the latter, it may first be stated that an em-
ployer who makes and supplies an instrumentality is chargeable
with such a knowledge of its defects as ordinary care during the
course of such manufacture would have disclosed. In case of
purchase, the duty of inspection may ordinarily be assumed to
have been discharged by the manufacturer, though a showing

> St. Louis. I. M. & S. R. Co. v. Taylor, 210 U.S. 281. 28 Sup. Ct. 616.
» Stagg V. Edward Western Tea & Spice Co.. 169 Mo. 489, 69 S.W. 391.
» Wormell v. Maine C. R. Co.. 79 Me. 397. 10 Atl. 49.
* McKay v. Hand, 168 Mass. 270, 47 N.E. 104.



132 LAW OF THE EMPLOYMENT OF LABOR

that the purchase was carelessly made (as, for instance, without
indicating to the manufacturer the intended use, so that he
might make tests appropriate to such use) has been held to
imply negligence. If an article is of an approved pattern, and
the dealer is a reputable one, the presumption is in favor of the
employer's non-liability.^ The doctrine does not control every-
where, however, cases being found in which it was held to be the
duty of the employer to cause a thorough inspection of newly
purchased articles before putting them into use.^ In favor of
this view is the fact that it accords with the doctrine of non-
delegable duties, discussed below, and that it alone affords pro-
tection to the employee where there has been actual negligence
on the part of the manufacturer, with whom he has no contrac-
tual relations.

The necessity for inspection of instrumentalities in use ob-
viously varies with the nature of the appliance and the cir-
cumstances of employment. Small and simple tools may be
used without inspection, the employer being entitled to assume
that the workmen will make timely discovery of defects and be
suitable judges of the fitness of such tools for use. Complex
or dangerous machinery or instrumentalities that are liable to
rapid wear or deterioration must, on the other hand, be the
subjects of inspections of a nature and frequency adapted to
the conditions indicated.

The duty does not extend beyond a reasonably careful inspec-
tion, though no defect will be considered latent which may be dis-
covered by the exercise of due care. The taking apart of ma-

» Reynolds v. Merchants' Woolen Co., 168 Mass. 501, 47 N.E. 406. But see
Erickson v. Am. Steel & W. Co., 193 Mass. 119, 78 N.E. 761.

» Morton v. Detroit, etc., R. Co., 81 Mich. 423, 46 N.W. Ill ; Richmond &
D. R. Co. V. EUiott, 149 U.S. 266, 13 Sup. Ct. 837.



LIABILITY OF EMPLOYERS FOR INJURIES 133

chinery, or such other inspection as would interfere with the
profitable conduct of business, is not, in general, required.^
External appearances, however, may be such as to demand a
more thorough inspection ; ^ so, also, of appliances showing
defects in operation or those to which some accident has oc-
curred of a nature Ukely to cause obscure injuries to machinery,
which may subsequently give rise to accidents.^

In many states coal mines, factories, stationary steam boilers,
and in some, locomotive boilers and railroad equipment, are
subjects of inspection at the hands of officials appointed by the
state.* Although some of these requirements have regard to the
safety of the public as well as to that of the employees, they are
valuable as fixing standards which must be observed, and non-
compliance with an inspector's orders is negligence if an employee
is injured by reason thereof/ According to the better view,
assumption of risks cannot be pleaded as a defense, since the



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