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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


the result that we now have in the United States a body of law and practice that is in effect largely of the nature of a compromise. It is the purpose of the present undertaking to set forth with some completeness the more important principles of the common law as generally applied to this subject in this country, together with such local variations as may appear; also to reproduce the statutory provisions of those States which have passed enactments on the subject, presenting the construction put thereon where they have been reviewed by the superior State courts or the Federal courts.


The doctrine of the employer's liability under the common law is presented under the heads of the duties and the defenses of the employer.


Is already stated, the two principal factors of the problem 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 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 resting on 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 cluty at the use of such caution and foresight as a corporation controlled by careful, prudent officers ought to exercise (9)

Though the courts of review have condemned any instructions that would tend to charge the employer with a higher degree of care than that which may be defined as ordlinary, the measure is not an absolute one, but is proportioned to the dangers to which the employee is exposed. The ordinary incidents of railroading, mining, and certain classes of manufacturing are in themselves, in comparison with general employments, 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 niine with one in which no

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& Wabash R. (*0. 1". JcDaniels (1852), 107 L'. S. tot, 2 Sup. Ct. 932.

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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. (R)


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 sa fety. 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 derices.

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. ¥. Armentraut (1905), 214 Hl. 509, 73 X. E. 766.

Butler 1. Townsend (1891), 126 X. 9. 10.), 26. X. E. 1017; Hoveland l. National Blower Works (1908), 114 X W. 7:35. (W'is.)

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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. () 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.

The doctrine that the employer is bound to safeguard his employees
from exposure to needless and unreasonable risks is subject to the gen-
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 contract-
ing and who knows the dangers attendant on employment in the cir-
cumstances. (') A brief statement of the rule is that the employer has
a right to exercise a reasonable judgment and discretion in the con-
duct 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 lise of unreasonably dangerous appli-
ances nor those which are in themselves defective or so obsolete and
inferior that their adoption or retention would of itself indicate
negligence, (C) though the question is held to be one not of compara-
tive safety but of reasonable safety. No fixed rule of liability is pos-
sible, therefore, in this respect, each case being of necessity decided
on its own merits.

Where a convenience is of great advantage, its adoption may be classed as obligatory, at least where the change involves but small cost. It is not clear how far expense may be offered as a defense, no case being at hand in which that alone was held to relieve the employer from the duty of correcting abnormally dangerous conditions. In Alabama, however, the cost and the effect on public interests were considered as so affecting the requirement that the employer was not held negligent as matter of law in a case where a low bridge over a railroad could be changed only at large expense and the marked inconvenience of several members of the public. (a)

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The same care is required of the master in maintaining as in fur-
nishing safe and suitable appliances. () Inasmuch, however, as the
progress of work and the use of tools produce constantly changing

a Mason 1. Richmond & D. R. Co. (1892), 111 X. C. 482, 16 S. E. 698.

Tuttle i. Detroit, etc., Ry. (1887), 122 ('. S. 189, 7 Sup. Ct. 1166.
€ ("hoctaw, O. & G. R. (-0, 1'. MeDade (1903), 191 l'. S. 64, 24 Sup. ('t. 24.
& Louisville & N. R. R, ('0. 1'. Hall (1890), 91 Ala. 112, 8 So. 371.
e Moore 1'. Wabash, St. L. & P. R. Co. (1885), SŐ Mo. 588.

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