hand labor. It has been well said that "the development has been profoundly influenced by the belief of the courts that the necessity of profit in industrial enterprises demanded protection even at the expense of damage to certain indus

tries.

PRESIDENT ROOSEVELT'S MESSAGE.

"The recent decision of the Supreme Court in regard to the Employers' Liability Act, the experience of the Interstate Commerce Commission and of the Department of Justice in enforcing the interstate commerce and anti-trust laws and the gravely significant attitude toward the law and its administration recently adopted by certain head of great corporation, render it desirable that there should be additional legislation as regards certain of the relation between labor and capital, and between the great corporations and the public.

"The Supreme Court has decided the Employers' Liability Law to be unconstitutional because its terms apply to employees engaged wholly in interstate commerce as well as to employees engaged in interstate commerce. By a substantial majority the court holds that the Congress has power to deal with the question in so far as interstate commerce is concerned.

"As regards the Employers' Liability Law, I advocate its immediate reenactment, limiting its scope so that it shall apply only to the class of cases as to which the court says it can constitutionally apply, but strengthening its provision within this scope. Interstate employment being thus covered by an adequate national law, the field of interstate employment will be left to the action of the several states. With this clear definition of responsibility the states will undoubtedly give to the performance of their duty within their field the consideration the importance of the subject demands.

"I also very urgently advise that a comprehensive act be passed providing for compensation by the government to all employees injured in the government service. Under the present law an injured workman in the employment of the government has no remedy, and the entire burden of the accident falls on the hapless man, his wife, and his young children. This is an outrage. It is a matter of humiliation to the nation that there should not be on our statute books provision to meet and partially to atone for cruel misfortune when it comes upon a man through fault of his own while faithfully serving the public. In no other prominent industrial country in the world could such gross injustice occur-for almost all civilized nations have enacted legislation embodying the complete recognition of the principle which places the entire trade risk for industrial accidents (excluding, of course, accident due to willful misconduct by the employee) on the industry as represented by the employer which in this case is the government. In all of these countries the principle applies to the government just as much as to the private employer. Under no circumstances should the injured employee or his surviving dependents be required to bring suit against the government, nor should there be the requirement that in order to insure recovery negligence in some form on the part of the government should be shown. Our proposition is not to confer a right of action upon the government employee, but to secure him suitable provision against injuries received in the course of his employment. The burden of the trade risk should be placed upon the government. Exactly as the working man is entitled to his wages, so he should be entitled to indemnity for the injuries sustained in the natural course of his labor. The rates of compensation and the regulations for its payment should be specified in the law, and the machinery for determining the amount to be paid should in each case be provided in such manner that the employee is properly represented without expense to him. In other words, the compensation should be paid automatically, while the application of the law in the first instance should be vested

in the Department of Commerce and Labor. The law should apply to all laborers, mechanics, and other civilian employees of the government of the United States, including those in the service of the Panama Canal Commission, and of the insular governments.

"The same broad principle which should apply to the government should ultimately be made applicable to all private employers. Where the nation has the power it should enact laws to this effect. Where the state alone have the power they should enact the laws. It is to be observed that an employers' liability law does not really mean mulcting employers in damages. It merely throws upon the employer the burden of accident insurance against injuries which are sure to occur. It required him either to bear or to distribute through insurance the loss which can readily be borne when distributed, but which, if undistributed, bears with frightful hardship upon the unfortunate victim of accident. In theory, if wages were always freely and fairly adjusted, they would always include an allowance as against the risk of injury, just as certainly as the rate of interest for money includes an allowance for insurance against the risk of loss. In theory, if employees were all experienced business men, they would employ that part of their wages which is received because of the risk of injury to secure accident insurance. But as a matter of fact, it is not practical to expect that this will be done by the great body of employees. An Employers' liability law makes it certain that it will be done, in effect, by the employer, and it will ultimately impose no real additional burden upon him."

In his annual message of January 1, 1909, to the Legislature, Governor Hughes, said:

"I believe that it would be salutary to go further in accordance with the principles which have been announced in some other jurisdiction and in the case of injuries sustained by adults by reason of conditions created or permitted in violation of the labor law to preclude a defense upon the ground of the assumption of risk by the employee. This would be an appropriate penalty for an infringement of the statute and secure the protection which the statute is designed to afford by requiring suitable safeguards against the risks that are incident to the employment. Our statute should make this policy clear in appropriate terms.

"I also recommend that provision be made for special and expert inquiry into the question relating to employers' liability and compensation for workmen's injuries. Our present methods are wasteful and result in injustice. Numbers of negligence cases are prosecuted upon a basis which gives attorneys a high percentage of recoveries. Only a small percentage of the premiums paid for insurance against liability is devoted to payment of losses. As a result the workmen do not receive proper compensation and employers pay large amounts that do not reach them. There are constitutional restrictions which stand in the way of some of the remedies which have been devised in other countries; but the subject should be thoroughly examined to the end that the present waste and injustice should be mitigated to the fullest extent that may be found to be at once practicable and consistent with provisions of our fundamental law."

In the last ten years the conclusion has been slowly but surely generating in the public mind that present conditions as to the employers' liability are intolerable. We are firmly of the opinion that the time has come for the enactment of laws on this subject which shall be at least the first step to a satisfactory solution of the difficulties of our present system.

That this problem is one which must be solved by the state governments is entirely clear. The scope of the jurisdiction of the federal government is limited by the constitution practically to regulation of its own liability as an employer and the liability of employees engaged in interstate commerce.

THE EMPLOYERS' LIABILITY ACT.

(Norris Act.)

In regard to the Fellow Servant rule, the negligence of a fellow servant who *is an agent, foreman, inspector or superior person is made the negligence of the employer. The statute enlarges the number of vice-principals and largely reduces the effect of the defense, thereby greatly increasing the scope of the right of the plaintiff to recover.

The defense of contributory negligence is modified in all cases and there is introduced the doctrine of contributory negligence similar to that provided in the Federal Act, Part I, Appendix 78. Contributory negligence is not a bar to recovery where the workman's contributory negligence is slight and the negligence of his employer is gross in comparison. But the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such workman.

In case minors are employed in violation of the statutes, the defenses of contributory negligence and assumption of the risk are taken away from the employer, but he may show by way of defense any fraud or misrepresentation made by such employe.

The statute fixes the maximum amount of recovery in case of death to workmen in the course of his employment who leaves a widow and one or more minor children, at $12,000, and in case the action shall be brought for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death was so caused, then the maximum amount of damages recoverable shall not exceed $10,000.

The general effect of the Liability Laws of Ohio is to largely remove the effect of all of the common law defenses and to correspondingly increase the scope of the workmen's cause of action in all cases where the injured workmen can prove his employer at fault. In these cases the Norris Act has had the effect of increasing recoveries in case of married men killed 16% (Part I, page xxxvii.)

But in all cases where the injured workman can not prove that his injury was caused by the negligence of his employer the act has no effect in recoveries. The best statistical results show that the causes of injuries to workmen are not attributable to their employers in to exceed 20% of the accidents. That in less than 80% of all accidents to workingmen, there is no remedy at all at law.

THE LABOR LAW.

The Common Law imposes the duty on the employer to use reasonable care toward his workmen. This is the definition found in the opinions of the courts in charging the jury on the duties of the employers to their workingmen under our statutes, and yet that is a very vague test. What is due care? What degree of care would a reasonably careful man use under the circumstances?

Workmen and employers have different standards of what is due care. The facts are presented to the juries long after the accident happened and they have often a very vague idea of what due care prescribes.

The Labor Law of Ohio has, since the act entitled: "An act to create a better sanitary conditions in workshops and factories where dust creating machinery is used," was passed in 1896, has been greatly added to. Many important acts have been passed which prescribe standard and methods of safeguarding work in certain employments to which the employer must conform.

The law restricts the use of scaffolds, requires various protective devices

and gives the Inspector of Workshops and Factories power to take steps to compel compliance with order for the safety of workmen.

However, the inspector claims that the penalties provided for the violation of the statutes are insufficient and the commission believes that they are not adequate in most cases. The Labor Law provides for instance that machinery shall be guarded, that frogs shall be blocked, that belt shifters shall be used and that mines shall be timbered and timber in abundance be left at the place to be used.

The effect of the requirements of the Labor Law, so far as they go, is to fix definite standards and define specific duties for the employer beyond and in addition to his common law duty to use due care. They should, and often do raise and make certain the standard of care of an employer. The Law is that in case the employers violate any requirement of the Labor Law and an employe is injured thereby that is prima facie evidence which the injured workman has an action against his employer and can recover damages unless he is barred by the employers' common law defense as modified by the Norris Act and Metzger Bill.

LAW OF EMPLOYERS' LIABILITY IN OTHER STATES

Speaking generally and broadly, the common law of employers' liability in all the other states is about the same as the common law of New York, and the New York employers' Liability Act is about the same as similar acts in other manufacturing states.*

The following states have by statute abrogated the defense of fellow servant either by general statute or in particular industries (usually as to railroads):

Arkansas, Colorado, Florida, Georgia (since 1855), Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Dakota, Texas, Wisconsin. The Colorado statute is the most striking example of this class since it completely eliminates the defense of fellow servant in every employment.

In the following states the defense of fellow servant is modified without being abrogated.

California, Mississippi, Maryland, Ohio, Oregon South Carolina, Utah, Vir

ginia.

In some or all of the states named modifications of the common law have been adopted along the following lines (by statutes or by decision as to the common law):

(1) Adopting the doctrine of comparative negligence which has always been the rule and common law in certain states like Georgia and in admiralty cases in the Federal Courts.

(2) Changing the burden of proof of contributory negligence which has always been from the plaintiff to the defendant, as has always been the rule in the Federal Courts and some states.

(3) Taking away the defense of assumption of risks when the risk assumed was caused by the fault or negligence of the employer.

'See Report of New York Commission, p. 16, with additions of slight cor

rections.

*The best available summary of the laws of the other states appears in the Bulletin of the United States Bureau of Labor, No. 74, of January, 1908.

This statute has been upheld as constitutional in Vindicator Min. Co. v. Firstbrook 36 Colo. 498.

With certain exceptions (see pp. infra) then all these statutory changes in the several states have simply tended to modify the present common law system, but have never disturbed the cardinal doctrine that the employer is liable only when he is at fault. It is quite impossible to analyze exactly the effect of any of these changes in the law made by the several states. The liability and accident insurance rates in the several states vary from so many causes that they. are no criteria of the effect of these changes in the laws, and there are no authoritative data as to what proportion of accident cases are won by the fellow-servant defense, or what proportion of accidents are caused by carelessness of the fellow servant, though it will appear later in the report that the proportion of accidents where these defenses of the employer are important, are much fewer than is generally supposed.

FEDERAL LAWS.1

It is not commonly appreciated how much consideration has been given by Congress in recent sessions to the question of employers' liability nor how advanced is our national legislation. In 1907-1908 two very important acts were passed. The first (Part I, Appendix 78) covers only the liability of interstate commerce carriers to employes engaged in such commerce. It was passed after a previous law on the same topic had been held unconstitutional. In brief, that law places upon the employer the liability to compensate the employe for all damages due in whole or in part to negligence or failure of duty of the employer, as at common law before a jury, and also takes away two of the employers' common law defenses and modifies the third. Thus, the act provides that contributory negligence of the employe shall not bar the action, but the damages shall be decreased by the jury in proportion to the negligence. It requires very little legal experience to make certain that the defenses of contributory negligence will be seriously damaged by that provision. The same law in terms takes away the defenses of assumption of risk and fellow servant. The same law provides that any contract to limit liability is illegal and void.

Chapter 226 of the Laws of the United States, 1907-08, provides that any artisan or workman of the government injured in its employ shall receive one year's salary unless he can sooner resume work, provided, however, that no compensation shall be paid when the injury results from the workman's negligence or misconduct, nor unless such injury continues for more than fifteen days. In case of death the law provides for the same payment to dependents. The administration of the law rests on the Secretary of Commerce and Labor. The law is reprinted in Part I, Appendix 79.

The federal law as to interstate commerce carriers is not important, as showing an attempt to solve the problem of employers' liability along lines which had been generally approved by organized labor up to the time of the appointment of this commission, and also as marking out a certain class of employes covered by that law who are, at the moment in a more favorable position in case of accident than workmen not engaged in interstate commerce. This law, adopted by Congress after full investigation, is more sweeping than any statute on the subject in any of the states. It is further notable in that it goes to the extreme limit in favor of the workingmen that any law can go which is based on the fault of the employer. There has not as yet been an opportunity to see how the law works in practice, how far it aids the workman or how much it costs the employer, nor has its constitutionality been authoritatively determined.*

'See Report of the Commissioner of New York, p. 16.

*The act was held unconstitutional by the Supreme Court of Connecticut, Hoxie, v. N. Y., N. Y., etc., R. R. Co., 73 Atlantic Rep. 754, see also Watson v.