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 EMPLOYERS' LIABILITY AS AN INDUSTRIAL PROBLEM

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view of the change in industrial conditions, that employers' liability statutes have that since that day it has been out of place chiefly been designed. Almost all American in our corpus juris. jurisdictions, for instance, protect trainmen In the light of pure reason the doctrine by including in the class of superintendents does not bear the closest scrutiny. Why, if for whose negligence the employer is liable the butcher is liable to the fishmonger's those who are in charge of trains, switches, boy, should he not be liable to his butcher or signals. General employers' liability boy's helper? Because, in the eye of the acts have for their leading feature the ex law, the butcher boy's helper assumed the tension of this class of vice-principals. risk. But this is begging the question. Of course, conditions are not to-day what There is no assumption of the risk qua risk; they might have been if such statutes had if there were, the helper could not recover not been passed. But wherever it remains, against his fellow servant, the butcher's boy. the rule is anomalous or nearly so on logical The risk is assumed only as to the master, grounds, pointed at by the injured workman which merely means that the law implies a as a chief source of his difficulties, and criti provision in the contract of hiring that the cized with vigor by economists and lawyers risk shall be assumed. In other words, it is wherever the opportunity offers. The maxim of volenti non fit injuria, like all one whether we say that he could not re cover because he assumed the risk or that he all maxims, is a trifle vague. If we mean assumed the risk because he could not re by "voluntary assumption of risk" that cover. Chief Justice Shaw of Massachusetts assumption which is the result of an implied in Farwell v. Fitchburg R. R. 4 'Met. 49 contract to take whatever may come in the (1842), the leading and almost the first case course of employment and is voluntary upon the fellow servant doctrine in this merely in the sense that the servant might country said, in following Priestly v. Fowler, have refused employment if he had chosen r "To say that the master shall be responsible there appears to be no valid reason why the because the damage is caused by his agents risk of injury from a fellow servant's care is assuming the very point which remains to lessness should not be one of the risks thus be proved." It seems to be equally true that assumed. But as we have seen, this is fiat to say that the master shall not be respon assumption; to recite the rule explains noth sible because the damage was caused by his ing. If, on the other hand, we take theagents is assuming the very point which re maxim to call for a voluntary assumption of some risk that is more or less well known mains to be proved. The Home Office in 1894 submitted a to be inevitably attendant upon the work to memorandum to the Royal Commission on be done, we cut out substantially all the dan Labor in the following significant terms. gers directly traceable to another's negligence "The doctrine (the fellow servant rule) is an and treat as assumed only risks arising out exception to the general rule; is modern of contact with inanimate things. It may judge-made law; implies a contract founded be that such an assumption is scarcely dis on a legal fiction not in accordance with tinguishable from contributory negligence. fact; has been pushed to extreme length by At all events for our purposes, the distinc the judges forcing and straining the meaning tion, if one exists, is academic. The notion that obvious risks of all sorts of the term 'common employment' and in practice leads to gross anomalies and injus are assumed and that contributory negli tice. . . . The law .... is an gence is always a bar to relief sits easily in* unfair law, operating oppressively against minds trained upon the common law. But machinery and the factory systems have workmen as a class." It is to modify this fellow servant rule brought with them demands not to be satis