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THE GREEN BAG

fied by assertion of common law dogma. The most obvious of these demands arise from what the French economists have called the risque profess-ioncl. Casual ob servation of the course of any industry is enough to convince one that there is a cer tain, computable risk of accident in that industry varying only as the material condi tions vary under which the industry is carried on. This risk is incident to and inherent in the industry. The courts, in accounting for the fellow servant rule and the rule of assumption of risk, generally used to observe that where there is extra risk, there is extra compensation, that public policy requires as high a degree of care as possible, and that these rules put a pre mium upon increased caution, and that the servant is in a better position than his master to observe dangers and guard against them. These are the grounds taken' by Chief Justice Shaw in the Farwell case and are hinted at in Priestly v. Fowler. But as to the accuracy of the first two statements, there is no longer any illusion. It is cer tainly no longer true, if it ever was, except in trades of extraordinary hazard, that wages are regulated to compensate for the risk. As to the second ground, that of supposed public policy, Field J. in Chicago & Mil waukee R. R. v. Roes 112 U. S. 377,383, remarked "We have never known parties more willing to subject themselves to dan gers of life or limb, because, if losing the one or suffering in the other, damages cculd be recovered by their representatives or them selves for the loss or injury." It is upon the third ground that doctrine must rest, and it is upon this ground that it has been placed by the more recent decisions, namely, that the servant has at least as good an opportunity as the master to guard against accidents. Except for permanent safety devices, which are for the master to supply, the statement is undoubtedly true. But is it a reason? Is it not also true that the risk of most accidents is obvious merely in the

sense that we all know that powder factories blow up every now and then, and that if a man works long enough at a circular saw the chances are that he will lose a hand? Is it not true that risks of this sort are voluntarily assumed, not because there is an interval after the danger becomes imminent in which to withdraw, but because by not going into that particular trade, that particular risk could be avoided? To persons accustomed to dispose of ques tions of employers' liability upon common law principles, without going minutely into the train of causation, the statistics in regard to the causes of industrial accidents are startling. John M. Macklin, Esq.; of the Labor Commission of New York state, made an elaborate and most valuable study of the condition of employers' liability both at home and abroad, and in 1899 em bodied it in a commissioner's report of which I have made frequent use. He quotes the Bulletin of the International Congress of Accidents to the effect that 70 per cent of the 48,400 industrial accidents occurring in Aus tria in the five years, 1890-94, were caused by unforeseen contingencies, by which is meant conditions not traceable to the fault of the person injured or of his employer, and that in 1896 that percentage rose to 76 per cent, while in 1887 but 51.8 had been thus caused in Austria against 53.13 per cent in Germany. With improvements in methods and increased requirements of safeguards, the percentage of such accidents tends to in crease, as these figures for Austria clearly indicate. Jt is probable that in Germany to-day something like 80 per cent of all industrial accidents are due to unforeseen contingencies — or to what is the same thing — the risque professionel.

These unforeseen contingencies are prob ably most often of a kind which, though under the classification adopted by conti nental observers are not traceable to the injured man's negligence, would nevertheless fall within the category of assumed, risks under our law. They are the results of saw