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ing the time within which actions to recover damages for injuries
might be brought, the provision being condemned as contrary
to law. In the Quinn case it was held that the statute was
not contravened by an agreement in the contract of employ-
ment by which the employee undertook to make a careful ex-
amination of the place of work so that he might understand its
dangers.

Section 74. Relief Benefits. — Where the feature of relief
benefits exists, a new factor is introduced, and, apart from stat-
utes declaring a contrary doctrine, the' ruHngs of the courts are
quite uniform in favor of the contract. It is generally provided
that the acceptance of benefits by the injured employee shall
operate as a waiver of his right of action at law against his em-
ployer, and that if action is brought and is compromised or
carried to judgment, no claim shall lie against the fund. Such
funds are usually maintained jointly by employers and em-
ployees, though the expense is not necessarily equally shared.

» Quinn v. New York, etc., R. Co., 175 Mass. 150, 55 N.E. 891 ; Pierce v. Van
Dusen, 78 Fed. 693 ; Minneapolis & St. L. R. Co. v. Herrick, 127 U.S. 210, 8 Sup.
Ct. 1176; Pittsburg, etc., R. Co. v. Montgomery, 152 Ind. 1, 49 N.E. 582;
Powell V. Sherwood, 162 Mo. 605, 63 S.W. 485 ; Mumford v. Chicago, etc., R. Co.,
128 Iowa 685, 104 N.W. 1135 ; Kansas P. R. Co. v. Peavey, supra. Per contra,
see Shaver v. Pennsylvania Co., 71 Fed. 931.



LIABILITY OF EMPLOYERS FOR INJURIES 147

An agreement to accept benefits, the acceptance to operate as
a waiver of the right of action, is not regarded as contrary to
public pohcy, inasmuch as it is not the making of the agreement
prior to the injury, which would not in itself be effective, but
the acceptance of benefits after the receipt of the injury, that
bars the action.^ The contract merely requires the employee
to make his election whether to apply to the relief department
or to sue.2 But if there is lack of mutuality, or the defendant
company fails to show that it assumes a fair proportion of the
burden of paying the benefits, even the acceptance of such bene-
fits will not bar a suit for damages.' Nor will a partial payment
of the agreed benefits avail as a bar to the action.* The state
has the right to promote the welfare and safety of those within
its jurisdiction by requiring all corporations and persons to be
responsible for their negligence to the full measure of the loss
caused thereby, a contract to the contrary notwithstanding.*
A contract that purports to bind the members of the relief de-
partment by the decision of an "advisory committee," making
such decision final and decisive, is void, as it undertakes to defeat
the constitutional right of appeal to the courts for the redress of
wrong.^

The agreement that claims on the benefit fund are forfeited
by suit in which judgment is procured or a compromise is made

> Johnson i-. Philadolphia, etc., R. Co.. 193 Pa. St. 134, 29 Atl. 854 ; Frank v.
Newport Min. Co.. 148 Mich. 637, 112 N.W. 504.

* Owena v. Baltimore & O. R. Co., 35 Fed. 715 ; Leas r. Pennsylvania Co., 10
Ind. App. 47, 37 N.E. 423.

» Chicago, B. &. Q. R. Co. i>. Miller, 70 Fed. 439 (CCA.) ; Atlantic C L. R.
Co. V. Beazley, 54 Fla. 311, 45 So. 761.

* Pennsylvania Co. v. Chapman, 220 111. 428, 77 N.E. 248.

' Chicago, M. & St. P. R. Co. r. Solan, 169 U.S. 133, 18 Sup. Ct. 289.

* Baltimore, etc., R. Co. v. Stankard, 56 Ohio St. 224, 46 N.E. 577.



148 LAW OF THE EMPLOYMENT OF LABOR

was held valid in an Iowa case ; ^ but the supreme court of New
Jersey ruled that "the judgment intended is one by which the
claimant recovers some compensation for the loss alleged," and
granted a new trial in a suit to recover the benefit where a suit
for damages at law had recovered nothing.^ Double recovery
will not generally be allowed, the provision of such contracts that
the prosecution of a suit bars the claim to the fund fixing the
status of the claimant thereunder.^ This question has been
made the subject of legislation, however, and a statute providing
that the acceptance of insurance, relief, or benefits from an as-
sociation of the nature under consideration shall not be a bar to
an action to damages ^ has been held constitutional,^ and the
fact cannot be ignored that in accepting such benefits the em-
ployee feels that he is only taking that to which he is entitled
by reason of his contributions to the fund without being re-
quired to forfeit his right to recover damages at law ; and it is
within the power of the legislature to declare that the payment
of such benefits shall not operate to discharge an employer from
liability for his negligence and shift the burden which the state
has declared he should be compelled to bear.^ A statute of
South Carolina goes a step farther, and requires railroad com-
panies to pay the agreed benefit on the death of an employee
from accident, with the provision that the acceptance of such
benefit shall not be a bar to action J This statute has been de-



.1 Donald v. Chicago, etc., R. Co. 93 Iowa 284, 61 N.W. 971.
2 O'Reilly v. Pennsylvania Co., 69 N.J.L. 119, 54 Atl. 233.
» Baltimore & O. R. Co. v. Ray, 36 Ind. App. 430, 73 N.E. 942.

* Iowa, Code, sec. 2071.

» McGuire v. Chicago, etc., R. Co., 131 Iowa 340, 108 N.W. 902 ; Chicago, etc.,
R. Co. V. McGuire, 219 U.S. 549, 31 Sup. Ct. 259.

• Chicago, etc., R. Co. v. McGuire, supra. ' Acts 1903, No.'48.



LIABILITY OF EMPLOYERS FOR INJURIES 149

clared valid/ but it was held that an employee recovering
damages as full compensation for injuries could not afterwards
disregard his rehnquishment of his interest in the benefit fund
and seek to secure such interest in an action at law. In such a
case the statute was held not to apply, and the agreement made
by the employee was held to control.

The federal hability laws of 1906 ^ and 1908 ' contain pro-
visions forbidding contracts of waiver, but contributions made
by employers to benefit or relief societies may be set off against
any judgment for damages secured by an injured employee.
This provision of the act of 1906 was held to be valid and to
give an injured employee a right to sue for damages in spite of
the fact that he had received benefits from a society of which he
was a member, one of the conditions being that the receipt of
such benefits should bar his right to sue.*

While express messengers may at common law waive their
right of action for damages in case of injury against both their
employer and the transporting railway company, such a contract
has been held to be void as against the railroad company under
the Iowa statute above mentioned.*

Section 75. Contributory Negligence. — When a risk involves
such a degree of danger that a prudent man would not assume
it, the defense to an action by an injured employee is not that
the plaintiff by his contract assumed the risk, but that he was,
by his conduct, guilty of contributory negligence. In practice,

1 Sturgiss V. Atlantic C.L.R. Co.. 80 S.C. 167, 60 S.E. 939.
» Acts 1905-1906, ch. 3073, 34 Stat. 232.
» Acta 1907-1908, ch. 149, 35 Stat. 65.

* Goldenstcin v. Baltimore & O. R. Co., 37 Wash. L. Rep. 2 ; Potter v. Same
37 Wash. L. Rep. 466.

' O'Brien v. Chicago N. W. R. Co., 116 Fed. 602.



150 LAW OF THE EMPLOYMENT OF LABOR

the line is not clearly drawn between the two defenses, nor is it
always easy to do so, inasmuch as the facts in a given case may
support either defense. The principles are distinct, however,
as assumption of risk is an implied or actual agreement, entered
into before the happening of the accident, to waive compensa-
tion from the employer for injuries resulting therefrom ; or, it
is an incident of the contract, read into it by the fixed rules of
law. If, however, there has been contributory negligence,
there is no reference to either contract or status to determine
rights, but only to the conduct of the employee. If under all
the attendant circumstances he fell short of reasonable and
ordinary care, the defense of contributory negligence will lie
against him.

The rule is announced by Cooley as follows : " If the plaintiff
or party injured, by the exercise of ordinary care under the
circumstances, might have avoided the consequences of the
defendant's negligence, but did not, the case is one of mutual
fault, and the law will neither cast all the consequences upon
the defendant, nor will it attempt any apportionment thereof."

The negligence of an employee will not be a bar to his action
unless it is the actual and proximate cause of his injury. Con-
duct merely furnishing the occasion or condition of the injury
does not amount to negligence.^ Even if the employee was
guilty of negligence which may have contributed to the accident,
yet if the employer by the exercise of ordinary care and diligence
could have avoided its occurrence, the antecedent negligence
of the employee has been held not to destroy his right of action.
Still less will the neghgence of the servant operate as a defense
where it is followed by willful or wanton negligence on the part

1 Smithwick v. Hall & U. Co., 59 Conn. 261, 21 Atl. 924.



LIABILITY OF EMPLOYERS FOR INJURIES 151

of the master. Where injuries result in death, the right of the
personal representative to sue, which does not exist under the
common law, but is now given by statute in most states, is
subject to the same limitations as would have been the right of
the injured person if he had survived.

Section 76. What Negligence bars Recovery. — What does
and what does not constitute such negligence as to be a bar to
an employee's claim for damages have not been consistently
ruled upon by the courts. The test varies according to circum-
stances, the rule being that the servant must conduct himself as
a prudent person would in a like position.

A servant engaging in work for which he is not qualified by
previous experience, and incurring injury, is held to have been
negligent.

So also if the precautions appropriate to dangerous situations
are omitted, or if an unnecessarily dangerous method of doing
work is chosen where the employee has the power of choice, or
if he assumes or remains in a position of unnecessary danger,
he will be held to be guilty of contributing to his own injury.

The use of defective or otherwise unsuitable instrumentali-
ties may be negligent, though if a showing of due care in the
circumstances is made, and the danger was not great and ob-
vious, an action for damages may be maintained.

Violation of orders or of specific valid rules of which the em-
ployee has notice, and the neglect of warnings with reference to
any of the acts named above will usually be held to imply neg-
hgence as a matter of law.^

The general rule that the employee loses his right to a re-

» Coops V. Lake Shore & M. S. R. Co., 66 Mich. 488, 33 N.W. 541 ; LouisvUlo
& N. R. Co. V. Woods, 105 Ala. 561, 17 So. 41.



152 LAW OF THE EMPLOYMENT OF LABOR

covery by remaining at work after the discovery of unsafe
conditions predicates a duty to leave the service in due time to
escape the threatened dangers. How far he may omit this
duty and still have recourse to his employer for compensation
for injuries cannot be absolutely determined in any general
sense, but it is allowable for the employee to remain a reason-
able time, and especially if his immediate departure would
jeopardize the safety of the public or the interests of his em-
ployers.^

Section 77. Comparative Negligence. — A doctrine of com-
parative negligence, according to which the courts attempt to
apportion the fault, and, if the preponderance of negligence
seems to be chargeable to the employer, to award damages in a
corresponding amount, has received some countenance at com-
mon law,2 although in later cases in the same courts the doctrine
has been repudiated, and a neghgent employee is now barred
from recovery unless it appears that his employer was guilty
of willful negligence in connection with the occasion of the in-
jury.^ The doctrine was seemingly approximated in a recent
case in which the court awarded damages to a plaintiff whose
"negligence was shght in comparison to that of the defendant,"
that of the latter being held to be the proximate cause of the
accident.^ This case did not properly present the doctrine of
comparative negligence, however, but rather that of "the last

> Irvine v. Flint & P. M. R. Co., 89 Mich. 416, 50 N. W. 1008 ; Pennsylvania
Co. V. Roney, 89 Ind. 453, 46 Am. Rep. 473 ; Houston & T. C. R. Co. r. Burnet,
49 Texas Civ. App. 244, 108 S.W. 404 ; Maryland Steel Co. v. Marney, 88 Md.
482, 42 Atl. 60.

* Chicago & A. R. Co. v. Johnson, 116 lU. 206, 4 N.E. 381 ; Wichita & W. R. Co.
V. Davis, 37 Kans. 743, 16 Pac. 78.

» Chicago & A. R. Co. v. Myers, 95 III. App. 578.

« Dobyns v. Yazoo & M. V. R. Co., 119 La. 72, 43 So. 934.



LIABILITY OF EMPLOYERS FOR INJURIES 153

clear chance," according to which the party who last has a clear
opportunity of avoiding an accident is considered responsible
for it, notwithstanding the negligence of the other party.

Apart from statutory enactment, therefore, the doctrine of
comparative negligence cannot be said to have a foothold in
American jurisprudence at the present time. The Federal
employers' Uability law of 1908' and recent law^s in several
states 2 incorporate it in their provisions, the former by declaring
contributory negligence not to be a bar to recovery, but that
damages shall be diminished in proportion to the amount of the
employee's negligence, the latter by the use of expressions that
direct a measuring or comparison of the degree of neghgence
with which the two parties are chargeable, and a proportionate
award of damages. This will doubtless give rise to some diffi-
culties in the matter of administration, but it is clearly a more
humane rule than that which relieves the employer from the
consequences of anything short of willful negligence in cases
where the employee's negligence in any degree contributed to
his injury, and such legislation has been declared constitutional.'

Section 78. The Fellow-servant Rule. — The remaining
defense to an employee's action for damages is what is known as
the "fellow-servant" rule, or the doctrine of common employ-
ment. According to this, where the employer has discharged
his duties as to a safe place, safe and suitable appHances, com-
petent fellow-servants, etc., he is not liable to an employee for
the acts or negligence of any mere fellow-servant or co-employee,

1 35 Stat. ch. 149.

» Nebr., Acts 1907, cli. 48; Nev., Acta 1907. ch. 214; N. Dak., Acts 1007,
ch. 203 ; S. Dak.. Acts 1907. ch. 219 ; Wis.. Acts 1907. ch. 254.

» Missouri P. R. Co. v. Castle. 172 Fed. 841 (CCA.) ; Kiley v. Chicago, etc.,
R. Co., 138 Wis. 215, 119 N.W. 309.



154 LAW OP THE EMPLOYMENT OF LABOR

provided such co-employee does not represent the employer.
Or, as it has been otherwise stated, "A master is not bound to
indemnify one servant for injuries caused by the negligence of
another servant in the same common employment as himself,
unless the neghgent servant was the master's representative."
If, however, the negligence of a coservant concurs with the
negligence of an employer in causing the injury, the injured
employee not contributing thereto, the employer will be hable
in damages.

The well-known diversity, not to say confusion and contra-
dictoriness of the ruhngs of the courts as to the application of
this rule arises from the lack of precise and generally accepted
definitions of the idea of common employment and of represen-
tation of the master. The relations of this doctrine to the other
elements which determine the employer's Habihty are such that
practically all that has been said with reference to the duties of
the employer and the assumption of risks by the employee must
be read in the Ught of the ruUngs of the jurisdictional courts on
the subject, although the principles involved are held to be those
of general law. In an opinion on a fellow-servant case which
was before the Supreme Court of the United States a few years
ago it was said that "there is perhaps no one matter upon which
there are more conflicting and irreconcilable decisions in the
various courts of the land than the one as to what is the test of
common service, such as to relieve the master from liability for
the injury of one servant through the negUgence of another."^
Not only do the courts of the various states differ, but in the
individual states are found fluctuations of opinion from time to

» Baltimore & O. R. v. Baugh, 149 U.S. 368, 13 Sup. Ct. 914 ; Northern
P. R. Co. V. Dixon, 194 U.S. 338, 24 Sup. Ct. 683.



LIABILITY OF EMPLOYERS FOR INJURIES 155

time, and the acceptance of new standards, with departures
from former positions, so that it is important to know the date
of an adjudication in order to determine the present construc-
tion in the state. In the Supreme Court itself we find a deci-
sion of 1884 strongly modified in 1893 and practically reversed
in 1899.1

The attempt has been made in a number of states to fix by
statute the relations of employees to one another, and to deter-
mine the liability of the employer for their acts or negligence ;
and this would appear to be the only practical method of at-
tempting a solution of the problem as it exists to-day. It must
be confessed, however, that even where statutes of different
states are closely similar if not identical in phraseology, the
effect of local interpretations is apparent in the varying con-
structions adopted.

The common law rule was enounced in England and America
at about the same time, apparently independently, and to
practically the same effect. Subsequent developments have
been more favorable to the employee in this country than in
England, however, some states having apparently lost sight of
the foundations of the rule.

The reasons offered by the courts for the rule have been vari-
ous, one being found in the view that the master's responsibility
is at an end when he has used ordinary care to employ com-
petent servants. It is held that the employee assumes the risk
of the possible negligence of a co-employee as one of the inci-
dents of the employment.' In another opinion of our Supreme

»Cf. Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. 184;
Baltimore & O. R. Co. v. Baugh, supra; and New England R. Co. r. Conroy, 175
U.S. 323, 20 Sup. Ct. 85.

» Hough V. Texas & P. R. Co., 100 U.S. 213, 25 L. Ed. 612.



156 LAW OF THE EMPLOYMENT OF LABOR

Court it was said that the obvious reason for exempting the
employer from liability is that the employee has or is supposed
to have such risks in contemplation when he engages in the ser-
vice, and his compensation is arranged accordingly, so that he
cannot in reason complain if he suffers from a risk which he has
voluntarily assumed, and for the assumption of which he is
paid.^ Another reason is found in alleged grounds of public
policy, as tending to make the employees more watchful over
their own conduct and that of their fellows, thus benefiting em-
ployers, employees, and the public alike by the greater care
with which they perform their duties.^ In close connection
herewith is the claim that any marked enlargement of liability
to capital would lead to the withdrawal of capital from indus-
trial enterprise, thus reducing the opportunities of employment
and inflicting damage upon the whole community.^

Each of these reasons has been the subject of adverse criticism,
and no one of them seems to give a satisfactory ground for ex-
cepting employees from the benefits of the doctrine of respon-
deat superior, or for compelling the employee to bear the burden
of "pure accidents" which occur in the prosecution of under-
takings, the advantages of which are to be reaped by the em-
ployer. The last two reasons mentioned above have perhaps
been most frequently relied on as supporting the customary
rule, though no such results as arc therein indicated have fol-
lowed the adoption of statutes greatly enlarging the rights of
employees to recover for injuries following upon industrial
accidents.



> Chicago, M. & St. P. R. Co. v. Ross, supra.

* Chicago, M. & St. P. R. Co. v. Ross, supra.

* New Pittsburgh Coal & C. Co. v. Peterson, 136 Ind. 398, 35 N.E. 7.



LIABILITY OF EMPLOYERS FOR INJURIES 157

The chief points requiring determination in any action in-
volving the principles under consideration are those of common
employment and of representative capacity. If it appears that
the injuries complained of are the result of the negligence of a
co-employee, the only hope of the plaintiff lies in showing that
the negligent person was a vice-principal, representing the
master at the time, and so devolving upon him a liability for
the acts or omissions charged.

Section 79. Common Employment. — The first question,
then, to be considered is what constitutes common employment.
It was said in a leading case that, "prima facie, all who enter
into the employ of a single master are engaged in a common
service, and are fellow-servants," ^ but this broad statement
will not answer as a conclusive test. Not only employment by
a common master, but also engagement in the performance
of duties that may reasonably be said to tend to the accomplish-
ment of the same end is necessary to meet general acceptance
by the courts ; nor is it a sufficient answer to say that all serve
the profit or convenience of a common employer. Where an-
other servant than the plaintiff, employed for a purpose entirely
different from his duties, has negligently caused the injury com-
plained of, it may well be said that they are not fellow-servants.
But even with this qualification the statement is not definite
enough to be of much use in determining particular cases, and
the expressions used by judges in passing on the question of
common employment throw little light on the subject. "En-
gaged in the same general business," " the same general under-
taking," or "in promoting one common object" are frequent
modes of expression, though in other cases the somewhat more

» Baltimore & O. R. v. Baugh. 149 U.S. 368, 13 Sup. Ct. 914.



158 LAW OF THE EMPLOYMENT OF LABOR

restricted phrases, "services having an immediate common
object," or "working in the same place to subserve the same
interests," are used. The question involves both law and facts,
but where the latter are undisputed, the decision becomes simply
a matter of law, and the trial jury will not pass upon it.

Section 80. Contemplated Risks. — A theory that has been
adopted in many cases is that the service is common if the neg-
ligence of the delinquent servant was, in a fair and reasonable
sense, one of the risks contemplated by the injured employee in
undertaking or continuing in his employment.^ This is a refer-
ence of the case to the doctrine of assumed risks previously
discussed, and involves the principles of knowledge, actual or
presumptive. By this theory the relation of the duties of the
injured and the negligent employees becomes the criterion, to-
gether with the question of the probability of the negligence of
the one affecting the safety of the other. An injured employee's
action will not be barred as matter of law by the single fact of
service of a common master where the probabilities of injurious
consequences from the delinquent servant's negligence were too
remote to be reasonably foreseen ; ^ since the fellow-service rule
"should be confined to those servants whose duties bring them
into such juxtaposition that one would be enabled to observe the
negligence of his fellows." ' This has also been termed the
association theory, and the supreme court of Kentucky in a
recent case declared it to be the doctrine of that state, as against
the departmental theory.^ Yet, inasmuch as the question is
not one simply of locality, but of likelihood of connected con-

" Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. 184.
« Northern P. R. Co. v. Hambly, 154 U.S. 349, 14 Sup. Ct. 184.
» St. Louis, A.



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