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 The Green Bag VOL. XVIII.

No. 4

BOSTON

APRIL, 1906

EMPLOYERS' LIABILITY AS AN INDUSTRIAL PROBLEM ROGER S. WARNER THERE is at least one field in which the elasticity of the common law and even perhaps of what may be called the common law idea, has proved no match for the strain put upon it by the development of modern life, — a field in which all Europe, including Great Britain, has struck at the roots of a fundamental doctrine both of the civil and of the common law, but in which the United States remains virtually at a standstill. This is the field of what is with us still, Employers' Liability for Damages. In Europe compulsory insurance or universal compensation has taken its place. The last century, almost within its latter half, has seen the supplanting of hand-driven tools by power-driven machinery and, as a direct consequence, of small independent workers by large systems of centralized labor accompanied by changes in the social fabric that to our ancestors would have been in credible. It is safe to say that no other system of law has been required in a compar atively short time to meet so radical a change in the conditions which it was designed to serve. The discovery of steam as a driving power and its immediate application to almost every kind of industrial activity brought large numbers of persons together under one roof for the purpose of combining their efforts toward the one end of manufacture. Before, these persons had worked singly or in twos or threes at their benches, or in their shops, or at their water-driven mills. Their occu pations were not perilous and what dangers there were were obvious to the most un thinking. Each man, if he depended upon

his neighbor for assistance, depended upon him to do a plain job. The weaver employed a man or two, the blacksmith had a helper, and the shoemaker an apprentice. Division of labor as we know it, there was none. The vital inter-dependence of workmen that we find in a modern factory or railway sys tem was undreamt of. Accidents were in frequent, and when they occurred were generally so obviously the result of a man's own carelessness that to bring an action for damages against the employer was far from being a common occurrence. Men worked with their own familiar tools, beside their own familiar friends, whose capacities were well known. Within the most simple limi tations, no man was forced to rely for his safety upon the skill of another. But times changed. Where girls once spun their flax and wove their linen in their houses, they now began to gather in factories and learned to guide power-driven machin ery. The shoemakers left their lasts and flocked to the machines, where, instead of being the sole master of his tools, each man found himself at work upon a delicate, rap idly driven, and not by any means infallible mechanism for the successful operation of which he must depend upon machinists and his employer's, conscientious care. The guard and driver of the coach were trans ferred to the steam railroad to take charge of what among all trades is the most complicated and hazardous. To realize the full extent and suddenness of this change in conditions one has only to compare the decisions in the last volume of his state reports with that published in 1825.