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enounces a contrary rule in a case involving this principle, hold-
ing that no one can urge against a system or method fixed by
statute one of his own adoption and challenge a comparison
between them without virtually denying the police power of the
state in this behalf.^

The argument to the contrary is that a rule under which it is
not possible for the employee to waive the protection of the
statute and assume the risks of his employer's known failure to
comply with its provisions establishes a liability unknowTi to the
common law. "There is no rule of public policy which pre-
vents an employee from deciding whether, in view of increased

* Colo.. A.S.. sec. 3751e ; N.Y.. Con. L., ch. 31, sec. 202.

* Narramore v. R. Co., supra.

» Gorman v. McArdle. 51 N.Y. St. 248, 22 N.Y. Supp. 479.

* District of Columbia v. Brooke, 214 U.S. 138, 29 Sup. Ct. 560.


wages, the difficulties of obtaining employment, or other suffi-
cient reasons, it may not be wise and prudent to accept employ-
ment subject to the rule of obvious risks. The statute does,
indeed, contemplate the protection of a certain class of laborers,
but it does not deprive them of their free agency and the right
to manage their own affairs." ^

The law, however, contemplates this protection by way of
prescribed methods and instrumentalities, with reference to the
use of which the discretion of the employer is eliminated, in
order that the statutory standard may be maintained in all
establishments alike ; and it is difficult to reconcile the assump-
tion of risks in cases of violation of the statute with that rule of
law that condemns waivers of the employer's liability in advance
of the receipt of the injury.^ Nor is it clear how a view that
insists that assumption of risks is a matter of law, imposed on
the employee "regardless of the desires of the master or the
servant," ^ is supported by an argument that adduces the prin-
ciples of "free agency and the right to manage their own af-
fairs." * No fact is more frequently reiterated, moreover, in
any review of labor legislation than that it is no longer the in-
tention of the state to leave employer and employee to the
untrammeled exercise of their free agency, so-called, but that

' Knisley v. Pratt, supra. See, however, a recent opinion by the same court
(Rhodes v. Spcrry, etc., Co., 193 N.Y. 223, 85 N.E. 1097), in which it was said
that the fact that a law created a liability unknown to the common law was no
objection to its constitutionality, as the legislative power was not so limited.
The plea of assumption of risks is now abolished in New York, where the injury
resulted from the employer's failure to comply with safety statutes. C.L., ch.
31, sec. 202. See Persons v. Bush Terminal Co., 125 N.Y. S. 277, 68 Misc. Rep.
673. « Sec. 73.

» Denver & R.G.R. Co. v. Norgate, supra.

* Knisley v. Pratt, supra.


its bounds are to be fixed for the sake of the general welfare of
the whole people.^

; Statutes are not wanting that formally enlarge the liability at
common law by abrogating the defense of assumed risks ^ or of
contributory negligence,' or both, as in some of the laws cited,
where the employer ignores the law as to safety appliances ; and
under the view that assumption of risks is a matter of contract,
it would appear that the laws prohibiting contracts of waiver
of the provisions of statutes must necessarily be construed as
barring this defense ; so also of laws that give to an employee
injured by reason of the failure of the employer to conform to the
requirements of the statute the same rights of recovery as if he
were not an employee,^ since it is only of an employee that it
could be said under any circumstances that he assumed the
risks of another's undertaking. A well known text writer has
said : —

"When the legislature of a state or the council of a municipal
corporation, having in view the promotion of the welfare or the
safety of the public or of individual members of the public,
commands or forbids the doing of a particular act, the general
conception of the courts, and the only one that is reconcilable
with reason, is that a failure to do the act commanded, or doing
the act prohibited, is negligence as mere matter of law, otherwise
called negligence per se, and this irrespective of all questions of
the exercise of prudence, diligence, care, or skill, so that if it is the

' See "Police power," sec. 6.

« 111., Acts 1905, p. 350, sec. 9 ; Ind., A.S., sec. 5173c, Acts 1907, chs. 118, 131 ;
Iowa, Code, sec. 2083, Acts 1907, ch. 181 ; Mass., R.L., ch. Ill, sec. 209; U.S.,
27 Stat. 531, Comp. St. p. 3174.

» Miss., Code, sec. 4051 ; Mo., Acts 1907, p. 181 ; Ohio, Gen. Code, sees.
8945, 8955.

* Mass., Acts 1909, ch. 514, sec. 127 ; Miss., Const., Art. 7, sec. 193.


proximate cause of hurt or damage to another, and if that other
is without contributory fault, the case is decided in his favor." '

There is, however, a strong hst of cases on the other side of
this question, holding that the employee may assume the risks
of such disobedience of the law by his employer. ^

A statute prescribing certain protective arrangements and
abrogating the defense of contributory negligence, imposing

' 1 Thompson Neg. sec. 10. For an extended and interesting discussion of
these points see Caspar v. Lewin, 82 Kans. 604, 109 Pac. 657.

» Denver & R.G.R. Co. v. Gannon, 40 Colo. 195, 90 Pac. 853, and cases cited ;
2 Labatt M. III., Acts 1909. p. 212.

» W. C. Ritchie & Co. v. Wayman, 244 111. 509, 91 N.E. 695.

* Com. V. Hamilton Mfg. Co., supra; Wenham v. State, supra; State v.
Buchanan. 29 Wash. 602. 70 Pac. 5 ; State v. Mullor, 48 Ore. 252, 85 Pac. 855 ;
Muller V. State, supra. * Muller v. State, supra.

» Withey v. Bloem, 163 Mich. 419, 128 N.W. 913.


their reasonable use.^ One state has such a law requiring seats
to be supplied for th^ use of children.^

Section 50. Effect of Unlawful Employment on the Employer's
Liability. — The effect on the employer's liability of his dis-
regard of the laws forbidding the employment of children is on
much the same footing with that of other violations of statutory
provisions affecting employment conditions.' Thus some
courts hold that the employment of a child under statutory age,
who is injured in the course of his prohibited employment, is
negligence per se on the part of the employer ; * while in others
it is regarded only as evidence of negligence.^ In the former
view, the unlawful employment resulting in injury supports an
action for damages, in which it has frequently been held that the
defenses of assumed risks and contributory negligence, cannot
be offered ; ^ and even where it is only evidence of negligence, it
has been said that if the jury finds from all the evidence that the
employment was negligence, and that injury resulted there-
from, there can and should be a recovery in the case ; ' while in
the Marino case, the court refused to allow the defenses of
assumed risks and contributory negligence. In another juris-
diction, it was made the ground of reversal of the judgment of

» Ala., Code, sec. 6857 ; Conn., G.S., sec. 4703 ; Iowa, Code, sec. 4999 ; Pa.,
B.P. Dig., p. 902.

» Okla., Acts 1909, p. 629, sec. 6. » See sec. 46.

< Leathers v. Tobacco Co., 144 N.C. 330, 57 S.E. 11 ; American Car Co. r.
Armentraut, 214 111. 509, 73 N.E. 766 ; Smith's Admr. v. Coal & Iron Co., 135
Ky. 671, 117 S.W. 280 ; Lore v. Mfg. Co., 160 Mo. 608, 61 S.W. 678.

' Stehle V. Jaeger Automatic Machine Co., 220 Pa. 617, 69 Atl. 1116 ; Marino v.
Lehmaier, 173 N.Y. 530, 66 N.E. 572.

• But see per contra, Darsam v. Kohlmann, 123 La. 164, 48 So. 781.

^Stehle V. Jaeger Automatic Machine Co., supra; see also same case, 225
Pa. 348, 74 Atl. 215, and Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67
Atl. 642, in which both defenses were disallowed.


a lower court because the trial judge had held that the doc-
trine of assumed risks had no application in a case in which
a child thirteen years of age was injured in the course of his
employment ; ^ while in a similar case the decision of the same
judge was to the effect that a child under fourteen years of age
is presumed to be incapable of assuming the risks of employ-
ment, though the matter is one for the jury.^ In neither of the
last two cases was a statute violated, the presumption being one
of common law. Where a statute prohibits the employment of
a child under a fixed age, the child's or his parent's misrepresen-
tation is no defense in an action against the employer for injury
resulting from the unlawful employment,^ and evidently a con-
trary ruling would allow unlimited violation of the law. The
fact that a child had been employed before the law was enacted
in no way removes him from its operation when it comes into

The fact of the subordination of the child to the parent and
of the parent's interest in the child's earnings gives rise to the
rule of law that where injury results to the child, the parent may
recover damages for the loss he himself suffers on account of the
interruption to or diminution of the child's earning capacity,
the recovery being limited in this respect to the value of such
services during minority.^ The parent in making the contract
assumes the risks of the particular employment for which the

> Alexander v. Carolina Mills, 83 S.C. 17, 64 S.E. 914.

» Owens r. Laurens Cotton Mills. 83 S.C. 19, 64 S.E. 915.

« Kirkham v. Wheeler-Osgood Co., 39 Wash. 415, 81 Pac. 869 ; American Car
Co. c. Armentraut, supra.

* Stehle V. Automatic Machine Co., 225 Pa. 348, 74 Atl. 215.

» Union P. R. Co. v. Fort, 84 U.S. 553, 21 L. Ed. 739 ; Shields v. Yonge, 15 Ga.
356, 60 Am. Dec. 698.


contract was made, but of that only ; so that if the child is
directed to perform other duties and is injured thereby, the de-
fense of assumed risks will not be allowed against the parent's
claim.^ This claim and recovery by the parent for damages
is independent of the child's right to recover for personal in-
juries, and separate recoveries may be had for the two elements
of damage.2

Section 51. Wages of Married Women and Minors. — At
common law a married woman entering service was assumed to
be hired out by her husband, so that her earnings belonged to
him ; but most states now give married women the right to
their earnings as their individual property.^ So also of minors,
who are unable to make valid contracts, generally speaking,
and whose earnings belong to the parent unless it can be made to
appear that they have been emancipated, or that the parent has
failed in the discharge of the parental duties. Legislation has
modified these rules of the common law in a number of states,
so that the payment of their earnings to minors is valid unless
or until notice is given by the parent or guardian that he claims
such earnings.^ One state ^ provides that the wages of a minor
shall be exempt from garnishment or other process on account
of the debts of the parent.

In this connection may be mentioned laws found in a few
states providing penalties for able-bodied parents who hire out

» Union P. R. Co. v. Fort, supra ; Braswell v. Cotton Oil Mill Co., 7 Ga. App.
167, 66 S.E. 539.

» Stehle V. Jaeger Automatic Machine Co., 225 Pa. 348, 74 Atl. 215.

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 9 of 32)