THE LAW

OF

COMPENSATION AND INSURANCE

FOR

INJURIES TO WORKMEN

CHAPTER I.

DISTINCTIONS BETWEEN THE COMMON LAW, EMPLOYER'S LIABILITY LAWS, WORKMEN'S INDUSTRIAL INSURANCE LAWS, AND WORKMEN'S COMPENSATION LAWS AS REMEDIES FOR COMPENSATING WORKMEN INJURED IN THE DUE COURSE OF THEIR EMPLOYMENT.

Sec.

1. The common law system of employer's liability prior to the employer's liability and workmen's compensation and insurance laws.

2. The system of employer's liability prior to the workmen's insurance and compensation acts.

Sec.

3. The distinguishing characteristics of employer's liability laws.

4. The modern conception of the employer's liability.

5. The distinguishing characteristics of workmen's compensation acts.

6. The distinguishing characteristics of workmen's industrial insurance laws.

§ 1. The common law system of employer's liability, prior to the liability, and compensation and insurance laws. Today, at common law, the employer's duty to his employé is to use ordinary and reasonable care for the safety of his employé while he is performing his work. That duty includes:

(a) The duty to provide a reasonably safe place to work.

(b)

The duty to provide reasonably safe tools and

appliances.

(c) The duty of being reasonably careful in hiring agents and servants fit for work they are to do. (d) The duty of providing suitable and reasonable rules for carrying on the work.

(e) The duty to warn and instruct youthful and inexperienced servants as to the dangers of the em

ployment.

If a workman be injured by reason of the failure of these duties he may recover from his employer full compensation for his injuries, the amount of damages to be determined by a jury in the usual legal proceedings. Such a right of action is based upon the negligence or fault of the employer. This is the fundamental principle of the present common-law system brought down from the common law of England and which no statute of States or the Federal Government had changed up to the time of the enactment of compensation acts.

The employer has, however, certain defenses to any action brought at common law, as it now exists, by an employé who has been injured in the due course of his employment, and which constitute a special body of socalled judge made law.

(1) THE DEFENSE OF CONTRIBUTORY NEGLIGENCE.

Contributory negligence is the negligence of a servant which is a contributing and proximate cause of his injury, and the burden is generally upon the employé in any action for compensation for injuries received to prove not only the negligence of the employer, but that he himself was exercising ordinary care and was free from negligence, directly contributing to the injury.1

1 The reasons for this rule are thus stated by Judge Thompson: "The rule that contributory negligence bars a recovery is said to be founded on (1) the mutuality of the wrong; (2) the impolicy

The employé injured by his employer's neglect is therefore placed in the same position as a stranger so injured.

(2) THE FELLOW SERVANT RULE.

The fellow servant rule, as announced in the earlier decisions of our Supreme Courts, precludes the recovery by one servant for any injury occasioned by the negligence of another engaged in the same general business, if there had been ordinary care and diligence observed by the master in the selection of servants.2

This fellow servant rule is a special rule which applies only to the status of employment and has its origin in a decision by Lord Abinger in the Court of Exchequer in 1837, in the case of Priestly v. Fowler (3 M. & W. 1), and finally settled in England by the House of Lords in 1858 in Barstonhill Coal Co. v. Reid (3 Macq. House of Lords Cases, 266). It was followed in all of the states of the union up to the time of the enactment of employers' liability laws.

The Priestly case, decided by Lord Abinger, was not a case of injury in a hazardous employment such as a factory or a railroad, but a simple case where a butcher's helper was injured by a wagon driver hired by the same employer. The judge regarded it a hardship to hold the butcher liable for the injury which had no real relation to any fault of the butcher, because the helper could have guarded against the injury as well as the butcher. This hardship appealed to Lord Abinger and he decided in favor of the butcher.

Lord Abinger's opinion reads as follows: "It is ad

of allowing a party to recover for his own wrong; (3) the policy of making personal interests of parties depend on their own prudence and care." 1 Thomp. Neg. (2d ed.), § 168.

2 Columbus, C. & I. C. R. Co. v. Troesch, 68 III. 545.

3 See also the case of Murray v. South Carolina Ry. Co., McMullan's Law, (S. Car.) 385, where the question was raised in South Carolina in 1837 and decided against the employé.