Page:American Journal of Sociology Volume 6.djvu/415

 COURTS AND FA CTORY LEGISLA TION 40 1

after he knew of his master's violation of this law has been considered several times. In the case of Simpson vs. the New York Rubber Co. (80 Hun. 415) the general term of the supreme court held that public policy forbade such waiver. 1

This decision has been in effect reversed by the court of appeals in a later case involving the same question, and in which it was held that the employe may by entering upon the employ ment with full knowledge of all the facts waive, under the com mon-law doctrine of obvious risks, the performance by the employer of the duty to furnish the special protection pre- scribed by the Factory Act. This case (Knisley vs. Pratt, 148 N. Y. 372) passes lightly over the question of public policy, without giving it consideration except by saying that to hold that the workman could not waive his master's statutory duty by continuing at work was "a new and startling doctrine cal- culated to establish a measure of liability unknown to the common law, and which is contrary to the decisions of Massa- chusetts and England under similar statutes." The decision of other states and of England affirming this "new and startling" doctrine are not considered at all, and the court's attention does not seem to have been called to them by plaintiff's counsel in his brief. The decision is based largely upon supposed anolo- gies between the case at bar and English and Massachusetts cases on employer's liability acts. These latter cases held that the English act (that of 1880) and the substantially simi- lar Massachusetts law of 1887 (neither of which created or

1 In the opinion in this case, Cullen J., after discussing the rule that statutory rights in which public policy is not involved may be waived, says : " But is there no question of public policy involved here ? To our mind there is, and that public policy should induce us to hold, unless a contrary doctrine is settled on authority, that this statutory protection cannot be waived. Our notion of government has confined state interference with the freedom of individual action within narrow limits, but such interference has never been utterly prohibited. Experience has shown that in some

matters persons must be protected from their own imprudence The state has

great interest in the protection of its members, and this even of the most utilitarian character. In the case of a maimed employe" he and his family are likely to become a public charge ; the community would seem to have as much an interest in the pro- tection of the life and limbs of a member of it as in the question whether he should pay 8 per cent, or 6 per cent, interest. Yet by no means which human wit can devise can he make a valid contract to pay more than 6 per cent, interest."