Page:Harvard Law Review Volume 2.djvu/231

 EMPLOYERS' LIABILITY. 213

those who, in criticising the rule, assert that it all sprang from an ill-considered opinion by Lord Abinger in Priestly v. Fowler. The leading American case, however, is Farwell v, Boston and Worcester Railroad Company, 4 Met. 49, which, following the South Carolina case, settled the rule in the United States. It has been followed in nearly every jurisdiction, both State and Federal.

To escape liability under the rule, hower, the employer must be without negligence himself. He must select workmen and machinery reasonably suitable for the work in hand, and in case of injury he must show that he was unaware of the in- competence of the men or the defect in the machinery, and that he exercised reasonable care in making his selections. It should be noticed, too, that the employer is not exempt from liability unless the person causing and the person suflFering the injury are "fellow-servants" engaged in the "same common em- ployment." Without attempting to go into a discussion of the much-mooted meaning of these two phrases,^ it will be sufficient for the purposes of this paper to say that the tendency of the American courts, especially since the case of Chicago, Milwaukee, and St. Paul Railway Company v, Ross, 112 U. S. 377, has been to interpret them favorably to the employees ; while the English courts, together with those of Maine, Massachusetts, New York, Pennsylvania, and a few other States, have extended the terms to include a great variety of cases, thereby increasing largely the immunity of the employers.

This doctrine of common employment, as the above rule is generally called, has been bitterly opposed. It rests, at best, upon grounds of public policy of thirty or forty years ago, — grounds which to-day have perhaps ceased to exist. Be that as it may, the fact remains that frequent attempts have been made to alter the law by legislation. It should be noticed, however, that general statutes afford no relief. Unless provision for remedy in cases of negligence of fellow-servants is expressly made, the courts apply rigorously the common-law rule excusing the master from liability. For instance, in Missouri it is held that a statute giving a right of action against a railroad company " whenever ^ny person shall die from any injury resulting from, or occasioned by, the negligence, unskilfulness, or criminal intent

' See Shearman and Redfield on Negligence, vol i, chap. x. (U