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the value of the work done.^ Of course no action will lie for a
breach of contract for such labor ; ® but where payments have

» Read v. Boston & A.R. Co., 140 Mass. 199, 4 N.E. 227 ; but see Newcomb r.
Boston Protective Dept., 146 Mass. 596, 16 N.E. 555.

» Hoadly v. Paper Co., 72 Vt. 79, 47 Atl. 169 ; Railway Co. v. Buck, 116 Ind.
566, 19 N.E. 453 ; Solarz v. Railway Co., 29 N.Y.S. 1123, 8 Misc. 656 ; Railway
Co. V. Towboat Co., 23 Howard 209, 3 U.S. 507 ; Moran v. Dickinson, 204 Mass.
559, 90 N.E. 1150.

» Carson v. Calhoun, 101 Me. 456, 64 Atl. 838 ; Brunnett v. Clark, 1 Sheld. 500
(N.Y.).

* Stewart v. Thayer, 168 Mass. 519, 47 N.E. 420 ; Blade v. Arnold, 53 Ky. 287 ;
Williams v. Hastings, 59 N.H. 373.

' Telfcr V. Lambert, (N.J.L.) 75 Atl. 779.

* Bernard v. Lilpping, 32 Mo. 341.

G



82 LAW OF THE EMPLOYMENT OF LABOR

been made for Sunday labor, they cannot be recovered by the
employer on the ground of the invalidity of the contract for such
labor.^

The invalidity of a contract for Sunday labor will not operate
to relieve one from the penalty for an additional offense in con-
nection therewith, as the employment of a child in a place where
intoxicants are sold, such employment being forbidden, since
the service itself is the evil to be guarded against, without regard
to the means by which the engagement was in fact procured.^
Where the employer is entitled to the defense of fellow-service,
the employee cannot overthrow it by showing that he was at
work on Sunday in violation of law, and therefore employed
under a void contract, and so not an employee.'

1 Calkins v. Mining Co., 5 S. Dak. 299, 58 N.W. 797.

« State 1). Hall, 141 Wis. 30, 123 N.W. 251.

» Shannon v. Union R. Co., 27 R.I. 475, 63 Atl. 488.



CHAPTER IV

REGULATION OF THE PHYSICAL CONDITIONS OF EMPLOYMENT

Section 37, Statutory Control. — The conditions surround-
ing employees in their places of employment are the subject of
regulation by statute in most of the states of the Union, whereby
the freedom of the employer to carry on his business in accord-
ance with his own ideas and plans, secured to him in general by
the principles of the common law,^ is interfered with. The
principal groups of laws of this class relate to the conditions of
safety and sanitation required in factories, etc., the equipment
and operation of railways, mining operations, and the erection
and repair of buildings.

Section 38. Regulation of Factories and Workshops. — Fac-
tory regulations range from the simple requirement that the
doors of workrooms shall open outwardly as a safeguard in case
of fire,2 provision for fire escapes being coupled therewith in
some cases,' to an elaborate code covering the guarding of dan-
gerous machinery,'* the removal by forced draft of dust and
injurious gases,^ the adequate provision of light* and air,^ and

» Tuttle V. Detroit, etc. R. Co., 122 U.S. 189, 7 Sup. Ct. 1166. See also aec. 60.
« Miss., Code, sec. 2272.

» Ga., Pol. Code, sec. 2622 ; S. Dak.. R.C., sees. 3163, 3165.
* Kans., Acta 1903, ch. 356 ; Conn., G.S., sec. 4516 ; Ind., A.S., sec. 7087i, etc.
•Iowa, Code, sec. 4999c; N.Y., C.L., ch. 31, sec. 86 ; Mass., Acts. 1909, ch.
614, sees. 83, 84. • N.Y., C.L.. ch. 31, sec. 81 ; Conn., G.S., sec. 4518.

' Ind., A.S., sec. 7087o ; N.J.. Acts 1904, ch. 64. sec. 19.

83



84 LAW OF THE EMPLOYMENT OF LABOR

the supply of suitable water for drinking ^ and for humidifying
the atmosphere.^ One state prohibits the taking of food into
rooms in which poisonous or injurious fumes or dusts are pres-
ent,^ Toilet rooms and privies may be required, their number
fixed in proportion to the number and sex of employees, and
their location and condition prescribed.^ Where the health of
the general public is directly involved, as in the manufacture of
bakery products,^ of butterine or ice cream,^ or of clothing,'
the regulations may be even more detailed, as by requiring rooms
to be periodically lime-washed, prohibiting the use of cellars,
and the like.

Of like nature with some of the above laws are the laws of a
few states which have for their object the protection of agri-
cultural labor where machinery is employed, requiring safe-
guards on horse powers,* or corn buskers or shredders.'

Section 39. Steam Boilers. — The inspection of steam boilers
is sometimes provided for in connection with laws relating to
factory inspection, ^° but in many states by^separate laws.^^ This
inspection is for the most part confined to stationary boilers and
engines, though in a few instances locomotive boilers are in-
cluded.^2 Marine engines and boilers are required to be in-

» Mass., Acts 1909, ch. 514, sec. 78; R.I., Acts 1907, ch. 1429.
2 Mass., Acts 1908, ch. 325. ' 111., Acts 1909, p. 202, sec. 8.

< Mass., Acts 1909, ch. 514, sees. 79-82, 100 ; Wis., A.S., sees. 1636-31,
1636-32.

* Cal., Acts 1909, ch. 104 ; Ind., Acts 1909, ch. 163 ; Pa., B.P. Dig., p. 62.

« 111., Acts 1907, p. 309.

1 Md., P.G.L., Art. 27, sees. 234-243 ; N.Y., C.L., ch. 31, sees. 100-105.

8 111., A.S., ch. 70, sec. 3 ; Iowa, Code, sec. 5025.

» Mich., Acts 1907, ch. 124 ; Wis., A.S., sec. 1636-131, et seq.

'o Pa., Acts 1905, No. 226, sec. 19.

" Conn., G.S., sees. 4890 et seq.; Minn., R.L., sees. 2168 et acq.

" Mass., Acts 1906, ch. 463, Pt. II, sec. 173 ; N.Y., Con. L., ch. 49, sec. 72.



PHYSICAL CONDITIONS OF EMPLOYMENT 85

spected, not only by state laws, but by statutes of the United
States as well.^

Section 40. Railways. — In respect of the provisions as to
locomotive and marine boilers, the interests of the general public
coincide with those of the employee to support the law, as is the
case in the matter of safety appliances on railways generally,
which are likewise the subject of both state and federal legisla-
tion. These laws relate to the use of automatic couplers,^ power
brakes,^ the blocking of frogs,* the installation of telltales or
warning strings at the approaches to bridges, tunnels, etc.,* the
height of wires, bridges, and other construction work across the
tracks of railroads,® the nearness of buildings and other objects
to the tracks,^ the equipment of freight cars with grab irons,
ladders etc.,' the use of adequate headlights on locomotives,® the
employment of a sufficient crew for the handling of trains,^" the
adoption and enforcement of suitable rules to control the oper-
ation of trains,^^ and other matters conceived to add to the safe
operation of the roads. Some states authorize the promulgation
and enforcement of rules by their state railway commissions."

» Minn., R.L., sec. 2173; Mich., Acts 1909. No. 113 ; U.S., R.S., 4399 et seq..
and amending acts.

» U.S., 27 Stat. 531, Comp. Stat., p. 1374 ; Con. G.S., sec. 3762 ; Mo., Acts
1907, p. 182.

» U.S., loc cit.; Del., Acts 1903, ch. 394 ; Ind., Acts 1907, ch. 118.

« Colo., A.S., see. 3751d ; Mo., Acts 1907, p. 181 ; Mich.. C.L., sec. 6313.

» Conn., G.S., sec. 3731 ; N.H., P.S., ch. 159, sec. 26.

« Ind.. Acts 1907. ch. 118 ; Mich.. C.L.. sec. 6324.

^ Ind., loc. cit.

« Ind., loc. cit. ; 111., R.S., ch. 114, sec. 226; Mass., Acta 1906, ch. 463. Pt. II.
sec. 162.

» Ark.. Acts 1907, No. 402 ; Ga.. Acts 1908, p. 50 ; Ohio, Acts 1910. p. 330.

i» Conn., G.S. sec. 3799 ; Wis., A.S. sees. 1809r et acq.

» Ind.. Acts 1907, ch. 272 ; Mich., C.L., sec. 6286.'

" Colo., Acts 1907, ch. 208 ; Vt., P.S., sec. 4611.



86 LAW OF THE EMPLOYMENT OF LABOR

Street railway employees must be protected from the inclem-
encies of the weather by the use of inclosed platforms for motor-
men in a number of states/ while a few direct seats to be fur-
nished for their use.^ Some also have safety appliance laws
appUcable to such roads.^

Section 4L Mine Regulations. — Laws regulating the opera-
tion of mines, providing for ventilation, means of exit, methods
of working, the setting and firing of blasts, the use of safety
lamps, and for the general inspection and supervision of the
work are found in practically all states within whose boundaries
mining is carried on.^ The Congress of the United States
passed a law of this class, applicable to mines in territories until
a local law should be passed satisfactorily covering the ground
of the Federal law.^ Besides the general provisions noted above,
the use of speaking tubes or other means of communication may
be required; and the guarding of hoistways and sumps, the
supply and placing of timbers, the construction and operation
of cages for miners and of hoists for coal, the location and quan-
tity of powder stored in or about the mine, safeguards against
outbursts of gas and water, and many other details may be
provided for by the law.

Section 42. Building Operations. — The dangers involved
in building operations are contemplated in the laws of a number
of states, by which the construction, testing, and barricading of
scaffolds, staging, etc., are regulated, floors required to be filled
in or planked over within designated distances as the work of

» Conn., G.S., sees. 3869, 3870 ; Ind., A.S., sec. 5479 ; Iowa, Acts 1909, ch. 51.

* Conn., Acts 1909. ch. 237 ; Oreg., Acts 1909, ch. 59.

» Cal., Pen. Code, sec. 369a ; N.H., Acts 1907, ch. 113.

* Ala., Code, sees. 999-1037 ; Colo., A.S. sees. 3181-3220 ; 111.. R.S., ch. 93 ;
Ind., Acta 1905, ch. 50 ; Pa., B.P. Dig. p. 1340, et seq. » 26 Stat. 1104. .



PHYSICAL CONDITIONS OF EMPLOYMENT 87

building progresses, or secondary scaffolding required ; the
guarding of hoistways or shafts, and provisions that hoists,
cranes, and other mechanical contrivances shall be so constructed
and operated as to protect the life and limbs of employees may
also be included.^ The conditions of employment in compressed
air are set forth with considerable particularity in a law ^ which
requires decompression locks and medical and toilet rooms to be
provided.

Section 43. Accidents. — Appliances for rendering medical
and surgical aid, as bandages, plasters, absorbent cotton, oil,
stretchers, blankets, etc., are to be provided for the care of in-
jured employees in factories and mines, according to the enact-
ments of several legislatures.'

Reports of accidents occurring in mines and factories, some-
times extending to all places of employment,* are required by
the laws of some states to be made to either an inspector or some
other official. Special laws are found in some states with ref-
erence to reporting accidents on railroads.* Many of these
laws contain provisions for the investigation of the cause of the
accident and the determination of the responsibility therefor.'
Such statutes have a close relation to the liability of the em-
ployer for injuries to his employees, as well as to the matter of
improving the conditions surrounding employees in their places

1 Conn., Acts 1907, ch. 152 ; Ohio, Gen. Code, sees. 12576, 12577. 12593
12594; Wis., A.S., sees. 1636-81 etseq.; 111.. Acts 1907, p. 312.

»N.Y., Acts 1909, ch. 291.

» Mass., Acts 1909, ch. 514, sec. 104 ; Mich., Acts 1907, ch. 152, sec. 6 ; 111.,
R.S.. ch. 93, sec. 30 ; Ind.. Acts 1905. ch. 50. sec. 13 ; Ohio, Gen. Code, sec. 925.

* 111., Acts 1907. p. 308 ; Ind., A.S.. sec. 7087h ; Mo.. R.S.. sec. 6432.

« Ala., Code, sec. 5666 ; Minn., Acts 1907. ch. 290 ; Ohio, Gen. Code. sec. 573.

•Ind.. A.S.. sec. 7087h ; Tenn.. Code. sec. 335; Minn.. Acts 1907, ch. 290;
Pa., B.P. Dig., p. 1356, sees. 190-203 ; U.S., 31 Stat. 1446. C.S.. p. 3176.



88 LAW OF THE EMPLOYMENT OF LABOR

of work. Some of them direct the inspector to take steps to
prevent the recurrence of Hke accidents, and to promote the
safety or convenience of the public or of employees by requiring
proper repairs and improvements to be made.'

Mere pubHcity is apparently largely relied upon as a means of
securing the changes necessary to remedy the defective condi-
tions, if any, which are found to be the cause of the accident.
This may be obtained either by publication,^ or by means of
reports to the legislature or the governor of the state,^ or by
records kept in the books of a state commission.^ In other
cases it is provided that the facts disclosed and the names of
witnesses shall be communicated to the persons injured or to the
friends of those killed as the result of the accident, which looks
clearly toward facilitating the recovery of damages ; ^ or the
law may provide for reports of neglect of duty to be sent to the
prosecuting officers of the state.® The opposite view is taken in
states in whose law on this subject it is expressly provided that
the facts obtained in any such report or investigation shall not
be used at any trial of suits for damages,^ or in any criminal
proceeding on account of such accident.^

Section 44. Construction and Interpretation of Safety Stat-
utes. — The basis of these provisions of law, which it is impos-

1 In mines : Kans., G.S., sec. 4138 ; Minn., Acts 1905, ch. 166 ; Tenn., Code,
sec. 335. On railroads : Miss., Code, sec. 4870 ; Minn., Acts 1907, ch. 290 ;
Vt.. P.S., sec. 4611 ; N.Y., Con. L., ch. 48, sec. 47.

* Ind., Acts 1907, ch. 241 ; Vt., P.S., sec. 4609.

» Minn., Acts 1907, ch. 290 ; Wash., Acts 1907, ch. 226.

* Ala., Code, sec. 5666 ; Ky., Stat., sec. 777 ; Mich., Acts 1907, No. 312.
Conn., G.S., sec. 3800.

« Ind., Acts 1907, ch. 272 ; Vt., P.S., sec. 4609.

"I Ind., Acts 1907, ch. 241 f Iowa, Acts 1907, ch. 110 ; Mont., Acts 1907, ch. 37,
sec. 18 ; N.Y., Con. L., ch. 48, sec. 47 ; U.S., 31 Stat. 1446, Comp. St. p. 3176.

* Iowa, loc. eit. ; Mont., loc. cit.



PHYSICAL CONDITIONS OF EMPLOYMENT 89

sible to more than sketch briefly, and which are being changed
and extended constantly, is the police power of the state, exer-
cised, in most instances, in behalf of the welfare of its citizens who
are employed, though in some cases the public welfare in its
broader sense is obviously concerned. They carry out and are
supported by the doctrine laid down by the Supreme Court in
the following language : " It is a principle fully recognized by de-
cisions of the state and federal courts, that wherever there is any
business in which, either from the products created or the in-
strumentalities used, there is danger to life or property, it is not
only within the power of the states, but it is among their plain
duties, to make provision against accidents likely to follow in
such business, so that the dangers attending it may be guarded
against so far as is practicable." ^ Nor is it an objection to the
constitutionality of such laws that they give grounds for actions
which would be without foundation at common law, since it is
within the power of the state to change and modify the prin-
ciples of the common law customarily applicable to the relations
of employer and employee in accordance with the conception of
public policy adopted by the legislature in view of existing con-
ditions.2

Of a factory inspection law it was said that it was a police
regulation for the protection of the lives, health, and morals of
the employees in factories, and clearly within the power of the
legislature to enact, so that there could be no doubt of its con-
stitutionality and vaHdity ; ' while regulations applying to
bakeries have regard to the public health, and are within the

» Nashville, C. & St. L. Ry. v. Alabama. 128 U.S. 96, 9 Sup. Ct. 28.
» WilminKton Star Min. Co. v. Fulton, 205 U.S. 60. 27 Sup. Ct. 412.
« State V. Vickens. 186 Mo. 10.3, 84 S.W. 908 ; State p. Hyman, 98 Md. 596, 67
A.tl. 6 ; Anns c. Aycr, 192 111. GOl, 61 N.E. 851.



90 LAW OF THE EMPLOYMENT OF LABOR

legislative power on this account.^ Mine regulations are clearly
within the reasons of the laws affecting factory labor.^ Since,
however, mine labor is known to be especially dangerous and
exhausting, laws looking to the safety of miners may be sup-
ported as valid on the ground that the hazards of the employ-
ment justify a special classification,^ bringing such laws within
the rules laid down in the matter of legislation affecting railway
employment.^ Of these laws, as of the federal safety appliance
laws, the Supreme Court has said ^ that they do not give the
mine owner the privilege of reasoning on the sufficiency of ap-
pliances or on the conditions involving reasonable safety, but
they fix a standard the maintenance of which becomes the em-
ployer's imperative duty, from which he cannot be excused
because some workman may disregard instructions. An em-
ployer will not be allowed to allege impracticability as an excuse
for failing to comply with the law, since to do so "would be the
abrogation rather than the construction of the statute." ®

As to other laws mentioned above as belonging to this class,
there is little to be gained by added discussion. Laws for the
protection of employees on street railways, requiring the pro-
vision of screens or inclosed vestibules, are constitutional,^ as
are those enacted to secure the safety of employees on buildings,

1 Benz r. Kremer, 142 Wis. 1. 125 N.W. 99.

» Chicago, W. & V. Coal Co. v. People, 181 111. 270, 54 N.E. 961 ; St. Louis
Consol. Coal Co. v. Illinois, 185 U.S. 203, 22 Sup. Ct. 616 ; Sommer v. Coal Co.,
89 Fed. 54.

« Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. 383 ; Smith v. Woolf, 160 Ala.
644, 49 So. 395.

« Missouri P. R. Co. v. Mackey, 127 U.S. 205, 8 Sup. Ct. 1161. See sec. 90.

• Deserant v. Cerillos Coal R.R. Co., 178 U.S. 409, 20 Sup. Ct. 967.

• Morris Coal Co. v. Donley, 73 Ohio St. 298, 76 N.E. 945.
» State V. Whitaker, 160 Mo. 59, 60 S.W. 1068.



PHYSICAL CONDITIONS OF EMPLOYMENT 91

being within the reasons of the laws of this class generally.^
They are also subject to the construction of law that permits the
employee to lose the benefit of their intention in those jurisdic-
tions that permit the employee to assume the risk of his em-
ployer's failure to conform to the provisions of the statute,'
or that declares that an employee continuing to work under
conditions of such failure bars his right to recovery for resultant
injuries because of his act in so continuing, by which he assumes
the risks and may also be guilty of contributory negligence,' —
rulings that confirm the importance of a clear statutory declara-
tion of the legislative intent in the enactment of laws of this
class, since otherwise the ordinary citizen is unable to determine
what are his rights under laws enacted apparently for his bene-
fit, but seemingly capable of being ignored with impunity.

With regard to railways, the question arises as to the control
of interstate commerce by Congress; but unless the field is so
covered as to exclude state control, matters of intrastate con-
cern may be regulated by state laws if they do not interfere with
existing federal statutes."* On this view the full crew laws ^
have been held valid.^ State laws regulating the use of auto-
matic couplers, etc., also come within this rule ; ' as do laws

• Stewart v. Ferguson, 34 App. Div. 515 (N.Y.) ; Marshall r. Norcross,
191 Mass. 568, 77 N.E. 1151.

» O'Maley v. South Boston Gaslight Co., 168 Mass. 135, 32 N.E. 1119.
' Stewart v. Ferguson, supra.

< Smith V. Alabama, 124 U.S. 465, 8 Sup. Ct. 564 ; Missouri P. R. Co. r. Flour
Mills, 211 U.S. 612, 29 Sup. Ct. 214.

' Ind., Acts 1907, eh. 11 ; Ark., Acts 1907, No. 116.

• Pittsburg, etc., R. Co. v. State. 172 Ind. 147, 87 N.E. 1034 ; Chicago, R.I. . White, 93 Ark. 368, 125 S.W. 120 ; Atlantic
C. L. R. Co. V. State. (Ga.) 69 S.E. 725.

» Cal., Act of Feb. 6, 1889.

* Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 755.



PHYSICAL CONDITIONS OF EMPLOYMENT 93

At what point the line would be generally drawn by the courts
is not clear, since much of the detail must of necessity be left to
the judgment and integrity of the enforcing officers; and such
expressions are quite common as "in the discretion of the chief
inspector," ^ "as the factory inspector may direct," * "the in-
spector shall direct the proper drainage," ' "if it appears to the
inspector that such [injurious] inhalation would be substantially
diminished " ; * and to attempt to eliminate discretion entirely
is obviously impossible.^

Section 46. Disobedience of Laws. — The power of the state
to enact inspection or safety appliance laws of the above classes
is not questioned as a general proposition,* and the failure of an
employer to comply therewith has been held to be negligence
per se in cases where injury befalls an employee by reason of such
failure ; ^ nor does the employee, in such a view of the law,
assume the risks occasioned thereby.^ In other courts such
failure is classed only as evidence of negligence,' in which view
the question of assumption of risks can be raised.^" The statute

> Ind.. A.S., sec. 7087i. « Conn., Acta 1905, ch. 13.

« III., Acts 1907, p. 309. * Mass., Acts 1909, ch. 514, sec. 84.

•Arms V. Ayer, 192 111. 601, 61 N.E. 851 ; St. Louis Consol. Coal Co. v. Illi-
nois, 185 U.S. 203, 22 Sup. Ct. 616.

•City of New York c. Miln, 36 U.S. 71, 11 Pet. 102; People v. Smith. 108
Mich. 527, 66 N.W. 382 ; State r. Vickens, 186 Mo. 103, 84 S.W. 908 ; State v.
Hyman, 98 Md. 596, 57 Atl. 6.

' Kiatt V. Lumber Co., 97 Wis. 641, 73 N.W. 563 ; Evansville Hoop & Stave
Co. V. Bailey, 43 Ind. App. 153, 84 N.E. 549.

• U.S. Cement Co. v. Cooper, 82 N.E. 981 (Ind. App.) ; Narramore r. R. Co.,
96 Fed. 298 ; Western Furniture Co. v. Bloom, 76 Kans. 127, 90 Pac. 821.

• Pitcher v. N.Y., etc., R. Co., 127 N.Y. 678, 28 N.E. 136 ; Jupiter Coal Mia.
Co. r Mercer, 84 111. App. 96.

» Knisley v. Pratt, 148 N.Y. 377, 42 N.E. 986 ; O'.Maioy r. South Boston Gas
Light Co., 158 Mass. 135. 32 N.E. 1119 ; Denver & Rio Grande R. Co. c. Gannon,
40 Colo. 195, 90 Pac. 853 ; Same v. Norgate, 141 Fed. 247.



94 LAW OF THE EMPLOYMENT OF LABOR

may declare failure to comply with the law prima facie evidence
of negligence, or that the employee assumes only the risks that
remain after the employer has complied with the laws calling
for safety appliances.^

The better reason seems to be with the view that disobedience
causing injury is negligence, since to permit the employee to
assume the risks of his employer's non-compliance with the
statute is practically to allow him to enter into a contract of
waiver both as to the provisions of the law and as to his rights
thereunder, which amounts to allowing the employer and em-
ployee to determine what is public policy, disregarding the
legislative determination embodied in the law.^ The right so
to do is indeed maintained in a case in which it was held that if
the proprietor, although failing to provide the statutory instal-
lation, had yet provided one equally safe and convenient, he had
performed his duty under the statute.' The Supreme Court



Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 8 of 32)