Page:The Green Bag (1889–1914), Volume 17.pdf/137

 124

THE GREEN BAG

upon the night when the injury occurred two other of the defendant's employés were also over come. The ruling of the court, then, simply means that where a certain amount of gas is un avoidably escaping from a blast furnace, and that additional gas is also escaping through the negli gence of the employer in quantities large enough to overcome three men, it is necessary to prove, in order to recover, that while the deceased no doubt inhaled both legal and illegal gas (as we may put it), the proportion of illegal gas which was inhaled must be proved, and that this pro portion must be large enough to have caused the injury. The court attempts to strengthen its po sition by saying: "It may be said that under such interpretation of the evidence a recovery could never be had in a case like the one at bar. The difficulty in making the proof, the seriousness of the accident, and the hardship resulting there from can in no manner change or modify the well established rule of law that in actions for negli gence, in order to warrant a recovery, it must be shown that the negligence of the defendant was the proximate cause of the injury sustained." And all this in spite of the fact that the jury which heard the case concluded that the gas which was escaping illegally was the cause of the injury. INJURIES TO SERVANT. (CONTRACT RELEAS ING LIABILITY — CONSTRUCTION AND VALID ITY.) NEW YORK SUPREME COURT, APPELLATE Div. For the first time it is believed the holding has been squarely made in the Appellate Courts of New York that contracts between employer and employé, made at the time of the employment, whereby the employé agrees to assume all risks incident to the employment, and to release to the employer all claims and causes of action con nected with any injuries so received, are contrary to public policy and void. This question was disposed of in the case of Johnson v. Fargo, 90 New York Supplement, 725, where the agreement in question was as follows: "In consideration of my employ ment by said American Express Company, that I will assume all risks of accidents or injury which I shall meet with or sustain in the course of such employment whether occasioned by the negli gence of said company, or any of its members, officers, agents or employés, or otherwise; and that in case I shall at any time suffer any such injury, I will at once execute and deliver to said company, a good and sufficient release of all claims, demands, and causes of action arising out of such injury or connected therewith or resulting therefrom." It was argued that under the line of cases known as the Express Cases, of which

Baltimore & Ohio R. Co. v. Voight, 176 U. S. 498 20 Sup. Ct. 385, 44 L. Ed. 560, may be considered the leading one, this agreement could not be de clared illegal. It will be remembered that in the Voight case the express company agreed with the railroad company, for a certain consideration, toprotect and hold the latter harmless from all lia bility which it might be under to employés of the express company for any injuries sustained by them while being transported by the railroad com pany, whether the injuries were caused by the negligence of the railroad or its servants or other wise, and Voight, the express messenger, by his contract of employment with the express company, in turn agreed to assume the risk of all accident or injury, whether occasioned by negligence of the railroad company or otherwise, and undertook and agreed to indemnify the express company for any claims which might arise for any damages sus tained resulting from negligence. The Supreme Court of the United States held that this agree ment prevented a recovery against the railroad company for its negligence by the employé of the express company. The New York Court, in dis tinguishing this class of cases from the case under consideration, points out that the contract in the Voight case limited the liability of a third party, and was not a limitation of the liability of the express messenger's employer. What the Su preme Court really held in that case was that the messenger was not a passenger. It is concluded that public policy requires that such contracts asthe one under consideration be set aside. At tention is called to the fact that while the exact question has not been adjudicated, the whole drift of legislation in New York has shown a dis tinct tendency to better protect the safety and health of employés, and that the courts have been inclined to strictly construe and limit agreements for the release of liability for negligent and im proper conduct. The legislature has clearly held to the principle that the public at large has such an interest in the health, safety, and welfare of classes of its citizens that as a matter of public policy laws may properly be passed securing these conditions through prescribing details of employ ment. While the courts cannot go as far as the legislature, the same considerations of general well being are a potential argument and a suffi cient basis often in condemning contracts which impair or threaten the protection which the leg islature has given. In conclusion the court says that it is argued that the labor market is free and open, and that the employé is entirely competent to take care of himself and need not accept work under the risks of such a release unless he chooses to, and that if he does, it is a matter of individual