Page images

as they have, we would kill and injure in the year of 1910 upwards of 1,000,000 workmen by our industrial activities.

As a concise illustration of the number of accidents and the effects of the introduction of devices and the enactment of laws for their prevention the Chairman cites the following table taken from a report of the Interstate Commerce Commission.



[blocks in formation]

If the accidents due to coupling and uncoupling cars had increased in the same ratio as the number of men employed has increased since 1893, in the year 1907 there would have been 548 men killed and 15,485 injured, instead of 272 killed and 4,062 injured; or a total killed and injured of 16,033 men as against 4,334 actually killed and injured in 1907 in this hazardous occupation.

The question of the prevention of accidents is of equal importance to that of compensation of workmen injured by them.

Therefore the Commission recommends that the Legislature appoint a committee of its own members to investigate the question of devising ways and means of prevention of accidents as part of the code for the compensation of injuries received by workmen in industrial occupations.

The investigators, Messrs. Watson, Harms and Peacock, incidentally to their main work, found many cases of workmen afflicted with occupational diseases when neither the workman nor the employer was conscious of the fact.

The State of Illinois now has a commission working on occupational diseases, and will report soon to their Legislature, the results of their investigations.

Mr. Watsou will present to the Legislature of Ohio his observations on occupational diseases discovered in Cuyahoga County, in his final report.

EMPLOYERS' LIABILITY. The old methods of manufacture, and even many of the old industries, have become obsolete and have become superseded by rapid, complicated and hazardous methods growing out of improvements directed towards the cheapening of products, and the ancient relation of employer and employe, under which the employe generally worked beneath the eyes of the employer, has ceased to exist.

In modern times the employer has little personally to do with the employe, and necessarily their mutual personal interest is no longer the same.

Notwithstanding the great changes in the character of the employment and in the hazards, there has been for years practically no change in the law governing the relation; so that thoughtful persons are almost nanimously of the opinion that the law now governing employer and employe, with respect to injuries done to the latter, in hazardous industrial occupations, is unjust to both employer and employe and a source of unfair oppression to the employer and a cause of unmerited hardship to the employe.

Many suggestions have been made as to a remedy, but the Commission is strongly of the opinion that the industry itself should bear the burden and not the employe. The industry now bears the burden of the wearing out and destruc-' tion of machinery necessarily resulting from its use, and civilization now demands that the industry bear also the burden of the wearing out and destruction of the efficiency of the human machines without which the industry could not survive. In bringing this about, radical changes in the law governing empioyer and employe must be made. When a man's life is lost, or his efficiency decreased through injury in his employment, humanity demands that his dependents in case of his death, and he himself in case of injury, shall be cared for. This care must be given either by the community at large, or by the industry in which he was engaged when injured.

We have not progressed so far in this country that the state will care for everybody except for charity's sake; but as the injured employe must be cared for, and as the ancient legal fiction of assumption of the risk in the dangerous employment of modern industry is unjust to the employe, it seems fitting that some device spreading this burden throughout the whole industry shall be created, and the employer protected from oppression by law suits and prolonged litigation, and the employer relieved from the necessity of seeking redress in the courts for loss of ability to earn a livelihood, of which he has been deprived by accident. Nor is this in any sense clarity, but only simple justice.

A change in the law should insure to the employe quick, practically immediate relief by way of support and medical attendance, coupled with an assurance of future support.

Some objection might be made to imposing of this obligation upon the industry, upon the ground that the employe should bear his share of the burden, in view of the fact that such a scheme is practically in the nature of accident insurance; but it seems more feasible to impose the whole burden upon industry because, like all the other losses growing out of depreciation in machinery and in the plant and other expenses, this added charge will be taken care of in the prices obtained by the employer for the products of the industry.


In support of our conclusions in making this report of our investigations the Commission discuss briefly, the following topics:

1. The present law of Ohio.
2. The laws of the United States and other States.

3. The operation of our legal system and its, economic results together with an historical review of the evolution of the common Law Defenses and the displacement of action based upon fault by the Social Remedy of Insurance against sickness, accidents and old age in Industrial Occupation, in United States and foreign countries.

4. Laws of the foreign countries.

5. The Report of Chief Investigator of the Commission, Mr. Emile E. Watson and his assistant, William P. Harms and William R. Peacock.

6. Our recommendations for immediate action and the reasons therefore.




The system of liability of employers in Ohio, speaking generally is found upon fault: That is an employe who is injured while employed can only recover damages from his employer when the jury finds that the employer was negligent and that his negligence caused the accident.

Even then he could not recover in case :

1. The employee was negligent and his negligence contributed to the cause of the injury.

2. The negligence of a fellow workman caused the injury. 3. Or if he assumed that risk while working when injured.

For injury due to the inherent hazards of the employment and accidents due to an act of God or for which the blame can not be fixed, the employer is not liable that is the fundamental principle of our law, which inherited from the Common Law of England, which no statute in this state has changed until the Metzger and Norris Liability Laws were recently passed. See Appendix VII. Part I.

That principle should be clearly fixed in mind because it is the justice and fairness of that fundamental theory and its practical operations which this report challenges.

The Legal Relations of the Employer and Employees in Ohio are governed by the Common Law as modified by Statute.

Although in Ohio we have recently enacted employees' Liability Laws they have not changed the fundamental principles of the common law in this report or greatly changed it. The legal relation of Employer and Employe at Common Law in both England and United States prior to 1837 in no way differs from its legal relations of a stranger and there were no special rules respecting Employers' Liability.

If A was injured on account of B's neglect and not by his own fault, B was bound to compensate whether A was an employee or not.

Since 1837 the Courts have made special rules respecting the Liability for accidents in employment. The reason which the Courts have assigned for this special body of judge made law is that they are exercising their duty in interpreting the contract of employment. It is therefore to be carefully noted that this body of purely judge made law is about 70 years old does and not exist for any clearly defined reasons of justice or public welfare.




Today, at Common Law, the Employers' duty to his employee is to ordinary and reasonable care for the safety of his enploye while he is performing his work. That duty includes :

(a). "The duty to provide a reasonable safe place to work. (b). The duty to provide reasonably safe tools and appliances. (c). The duty of being reasonably careful in hiring agents and servants fit

for the work they are to do.


(d). The duty of providing suitable and reasonable rules for carrying on

the work." li a workman be injured by reason of the failure of these duties he may recover from his employer full compensation for his injuries, the amount of damages to be determined by a jury in the usual legal proceedings. Such a right of action is based upon the negligence or fault of the employer, this is the fundamental principle of the present common law system brought down from the common law of England which no statute in Ohio has changed up to the present time.

The employer has however certain defenses to any action brought at common law as it now exists by an employee who has been injured in the due course of his employment, and which constitute a special body of so-called judge made law.

(a). The defense of contributory negligence,

"Contributory Negligence is the negligence of a servant which is a tributing and proximate cause of his injury, and the burden is upon the employe in any action for compensation for injuries received to prove not only the negligence of the employer, but that he himself was exercising ordinary care and was free from negligence, directly contributing to the injury."

The employee therefore injured by his employers neglect is placed in the same position as a stranger so injured.

(b). The Fellow Servant Rule.

"The Fellow Servant Rule, as announced in the earlier decision of our Supreme court, precludes the recovery by one servant for any injury occasioned by the negligence of another engaged in the same general business, if there had been ordinary care and diligence observed by the master in the selection of servants."

C. C. & I. C. R. Co. vs. Troesch, 68 III. 545.

This fellow servant rule is a special rule which applies only to the status of employment, which was created by a decision by Lord Abinger in England in the Court of Exchequer in 1837, in the case of Priestly v. Fowler, 3 M. & W. I., and finally settled in England by the House of Lords in 1858 in Barstonhill Coal Co. v. Reid (3 Macq. House of Lords Cases, 266). It was followed in Ohio.

See also the case of Murray v. South Carolina Ry. Co., McMullens Law, 387, where the question was raised in South Carolina in 1837 and decided against the employe.

The Priestly case, decided by Lord Abinger, was not a case of injury in a hazardous employment such as a factory or a railroad, but a simple case where a butcher's helper was injured by a wagon driver hired by the same employer. The Judge regarded it a hardship to hold the butcher liable for the injury which had no real relation to any fault of his, the butcher, because the helper could have guarded against the injury as well as the butcher. This hardship appealed to Lord Abinger and he decided in favor of the butcher.

Lord Abinger's opinion reads as follows:

“It is admitted that there is no precedent for the present action by a servant against a master. We are, therefore, to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other.

"If the matter be liable to the servant in this action the principle of that liability will be found to carry up to an alarming extent. He who is responsible by his general duty, or by the terms of his contract for all the consequences of negligence in a matter in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of his carriage to his servant, he is responsible for

[ocr errors]

the negligence of his coachmaker, or his harnessmaker or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect in the carriage, owing to the negligence of the coachmaker or for a defect in the harness, arising from negligence of the harnessmaker, or for drunkenness, negligence or want of skill in the coachman; nor is there any reason why that principle should not, if applicable in this class of events, extend to many others. The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed; for that of the upholsterer for sending him a crazy bedstead, whereby he was made to fall down while asleep and injured himself; for the negligence of the cook in not properly cleaning the copper vessels used in the kitchen; of the butcher, in supplying the family with meat of a quality injurious to the health; of a builder for a defect in the foundation of the house, whereby it fell and injured both the master and the servant by the ruins.

“The inconvenience, not to say the absurdity, of, these consequences afford a sufficient argument against the application of this principle to the present case. But, in truth, the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information and belief. The servant is not bound to risk his safety in the service of his master, and may, is he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not at all, he is just as likely to be acquainted with the probability and extent of it as the master."



(c). As Defense of Assumption of risk.

The so-called Assumption of Risk rule is closely related the Fellow Servant rule, the former rule really embracing the latter. This principle, which is now established in the law beyond the reach of controversy, is that every risk which an employment still involves after a master has done everything that he is bound to do for the purpose of securing the safety of his servants (including the employment of other servants) is assumed, as a matter of law, by each of those servants. The risks which are thus considered to have been assumed, are those which are commonly described as “ordinary.” It is the settled doctrine of the law that the servant may reasonably be presumed to foresee that he will be exposed to the ordinary risks of the business in which he engages, but that he ought to be charged with anticipating the consequences of risks of an extraordinary character. (Samuel A. Harper.)

The courts are wont to say that there is an "assumption" of the risk, or an "implied contract,” however, in tle average case and that is merely a formula of words which the rule of law happens to take. Even in dangerous employments there is usually 110 contract between the employer and the workman concerning the risk.

In most states there is a duty placed by statute upon workmen to support their wives and children. Hazard of an employment does not fix the price of wages, they are fixed by competition,

The common law system of Employers' Liability has been developed along the same lines in the United States and Great Britain, during the period in which modern manufacturing in Austria with its factory system was replacing

« PreviousContinue »