THE LEGAL LIABILITY OF EMPLOYERS FOR INJURIES TO THEIR EMPLOYEES, IN THE UNITED STATES. BY LINDLEY D. CLARK, A. M., LL. M. 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 National courts and by the enactment of numerous statutes passed with a view to a more exact definition of the rights of the employee or to some amelioration 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, indicative 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 one another. The great volume of litigation on the subject has not effected results of a conclusive character, mainly, perhaps, because of the fact that it is largely an effort to determine the boundaries between the risks assumed under the law by an injured employee and the unlawful negligence of the employer in causing or permitting dangerous conditions to exist. The definitions of these factors often have not been accurately drawn, nor have those formed been so generally accepted as to secure uniformity. Again the view formerly prevalent favored the entire assumption of the risk by the employee, while the gradual growth of the doctrine of the duty of his protection by the employer has given ise to a variety of decisions and statutory enactments, with 1 e United States a body of law and of the nature of a compromise. It Certaking to set forth with some comprinciples of the common law as genin this country, together with such local also to reproduce the statutory provisions essed enactments on the subject, presenthereon where they have been reviewed or the Federal courts. OVMON LAW LIABILITY. employer's liability under the common law beads of the duties and the defenses of the PRE DUTIES OF EMPLOYERS. , the two principal factors of the problem are the over to protect his employee in the discharge of the ment and the assumption by the employee of the e undertaking in which his contract of employ The duty of the employer is first considered, found impossible to discuss it without constantly the modifications that result from the existence of any obligations resting on the employee. statement of the rule governing the employer is that to use due care for the safety of his employees while gl in the performance of their work. This is taken sonable means and precautions, the facts in each parng taken into consideration. If such provisions have reasonably prudent man would supply if he himself Axi to the dangers of the servant's position, no negligence In the case of corporations the Supreme Court fixes at the use of such caution and foresight as a corporation y careful, prudent officers ought to exercise. (") the courts of review have condemned any instructions that to charge the employer with a higher degree of care than A may be defined as ordinary, the measure is not an absobut is proportioned to the dangers to which the employee ya. The ordinary incidents of railroading, mining, and cer of manufacturing are in themselves, in comparison with ployments, unusually dangerous; and so of a large railas compared with a smaller one, an express train as coma freight train, or a gaseous mine with one in which no McDaniels (1882), 107 U. S. 454, 2 Sup. Ct. 932. 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. 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 protection 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. (") PLACE AND INSTRUMENTALITIES. Tools and appliances. In accordance with the rule as to due care, the obligation rests on the master to supply tools and appliances 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 procurable. Place and materials. 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 supplied, 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 fellowworkmen of an injured employee, or perhaps to his own negligence in erection. (') New devices. What may be required in the way of improvement and alteration or in the adoption of new devices to accomplish the ends of safety is governed largely by the usual and ordinary course of procedure of those in the same business. The employer can not be made an insurer, nor is he bound to introduce the newest and safest appliances. On the other hand, he can not be allowed to disregard all inventions for securing the safety and comfort of his workmen. But as new a Am. Car & Foundry Co. v. Armentraut (1905), 214 Ill. 509, 73 N. E. 766. Butler . Townsend (1891), 126 N. Y. 105, 26 N. E. 1017; Hoveland v. National Blower Works (1908), 114 N. W. 795. (Wis.) 4 devices become more generally used, the standard of the custom of prudent men will become correspondingly altered, and the law of general usage may compel the adoption of devices the omission of which had not previously been considered as negligence. (a) This rule operates more effectively in the case of installing new equipments or of beginning a new undertaking than where the question is one of the continuance or modification of established conditions. from exposure to needless and unreasonable risks is subject to the genThe doctrine that the employer is bound to safeguard his employees eral qualification that one has the right to carry on a business which is dangerous, either in itself or because 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 duct of his affairs, and it is said that it would be a very extraordinary a right to exercise a reasonable judgment and discretion in the concase indeed in which this right would be interfered with. () This does not, however, permit the use of unreasonably dangerous appliinferior that their adoption or retention would of itself indicate ances nor those which are in themselves defective or so obsolete and negligence, (c) 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. Where a classed as convenience is of great advantage, its adoption may be obligatory, at least where the change involves but small cost. It is not clear how far expense may be offered as a defense, no being at hand in which that alone was held to relieve the tions. In Alabama, however, the cost and the effect on public interemployer from the duty of correcting abnormally dangerous condi case ests were over a considered as so affecting the requirement that the employer was not held negligent as matter of law in a case where a low bridge railroad could be changed only at large expense and the marked inconvenience of several members of the public. (4) The Repair. nishing safe and suitable appliances. (c) Inasmuch, however, as the progress of work and the use of tools produce constantly changing Mason v. Richmond & D. R. Co. (1892), 111 N. C. 482, 16 S. E. 698. 11. St. L. & P. R. Co. (1885), 85 Mo. 588. |