Page:Harvard Law Review Volume 2.djvu/241

 BMPLOrBRS' LIABILITY,

223

his death. The effect of the decision is, that the employee can bargain away the rights of his family, secured by Lord Campbell's Act, as well as his own right to recover damages. Under the influ- ence of this case, it is now, it is authoritatively stated, a very com- mon practice for employees to sign such contracts. So, at the outset, a large class of operatives and laborers have to be omitted in considering the practical results of the act. Add to this the fact, shown by carefully compiled statistics, that in eighty-nine per cent, of all the cases decided under the act, the plaintiff has failed to maintain his action because of contributory negligence, and it will be seen that the number of employees actually benefited by the act is small. Moreover, the act does not abolish the defence of common employment. It is still a good defence in certain cases. If the person causing, and the person suffering, the injury are fel- low-servants of the same grade, the liability of the master remains unchanged. The act does do away, however, with much of the law that has grown up since Priestly v. Fowler, the very law which has been most complained of by workmen.

As would be expected, actions on the Employer's Liability Act have been frequent, and the number of cases which have reached the higher courts is numerous.

Under sub-section one, relating to " defect in the condition of the ways, works, machinery, or plant," it has been held that a vicious horse is a defective " plant ; "^ that " works " must be taken to mean works already completed, and not works in course of construction, which are on completion to be connected with the business of the employer ; * that " defect in the condition of ma- chinery " includes unsuitable machinery, and is not confined to cases where the machinery has become defective ; * that the same clause covers a case where the machine, though not defective in its construction, was, under the circumstances in which it was used, calculated to cause injury to those using it ;^ that obstacles lying in the way which do not in any degree alter the fitness for the purpose for which it is generally used, and cannot be said to be incorporated with it, do not make it defective within the mean- ing of the section.* A " defect in the condition of the way " was not shown by the following facts : There were two wells

1 Ymnnonth v, Frmncc, 19 Q. B. D. 647. « Howe v. Finch, 17 Q. B. D. 187.


 * Crippt V. Judge, 13 Q. B. D. 583. * Hetke v. Samuelson, 12 Q. B. D. 30.


 * McGiffin V. Pftliaer'iShipbiiildiDg and Iron Company, 10 Q. B. D. i.