mitted that there is no precedent for the present action by a servant against a master. We are, therefore, to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other.

"If the master be liable to the servant in this action the principle of that liability will be found to carry up to an alarming extent. He who is responsible by his general duty, or by the terms of his contract for all the consequences of negligence in a matter in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coachmaker, or his harnessmaker or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect in the carriage, owing to the negligence of the coachmaker or for a defect in the harness, arising from negligence of the harnessmaker, or for drunkenness, neglect or want of skill in the coachman; nor is there any reason why that principle should not, if applicable in this class of events, extend to many others. The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed; for that of the upholsterer for sending him a crazy bedstead; whereby he was made to fall down while asleep and injured himself; for the negligence of the cook in not properly cleaning the copper vessels used in the kitchen; of the butcher, in supplying the family with meat of a quality injurious to the health; of a builder for a defect in the foundation of the house, whereby it fell and injured both the master and the servant by the ruins.

"The inconvenience, not to say the absurdity, of these consequences affords sufficient argument against the application of this principle to the present case. But, in truth, the mere relation of the master and the servant

never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not all, he is just as likely to be acquainted with the probability and extent of it as the master.' 994

3. THE DEFENSE OF ASSUMPTION OF RISK.

The so-called "assumption of risk rule" is closely related to the fellow servant rule, the former rule really embracing the latter. Under this principle every risk which an employment involves after a master has done everything that he is bound to do for the purpose of securing the safety of his servants (including the employment of other servants) is assumed, as a matter of law, by each of those servants. The risks which are thus considered to have been assumed, are those which are commonly described as "ordinary." It is the settled doctrine of the law that the servant may reasonably be presumed to foresee that he will be exposed to the ordinary risks of the business in which he engages, although it may involve unusual or extraordinary hazards.

The courts are wont to say that there is an "assumption of the risk," or an "implied contract," however, in the average case and that is merely a formula of words which the rule of the law happens to take. Even in dangerous employments there is usually no contract between the employer and the workman concerning the 4 Priestley v. Fowler, 3 M. & W. 1.

risk.

Hazard of an employment does not fix the price

of wages, they are fixed by competition.

The common law system of employers' liability has been developed along the same lines in the United States and Great Britain, during the period in which modern manufacturing with its factory system was replacing 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 industries."4a

§ 2. The system of employer's liability prior to the insurance and compensation acts.-The system of liability of employers in the States of the United States and the United States, speaking generally, is founded upon fault. That is, an employé who is injured while employed can only recover damages from his employer when the jury finds that the employer was negligent and that his negligence caused the accident. Even then the employé may not recover in case he was negligent and his negligence contributed to the cause of the injury, or the negligence of a fellow workman caused the injury, or he assumed that risk while working.

For injury due to the inherent hazards of the employment and accidents due to an act of God or for which the blame can not be fixed, the employer is not liable.

These fundamental principles of the common law were accepted and enforced by all the courts of this country until the enactment of Workmen's Insurance and Compensation Laws by Montana, New York, Washington, Ohio, Wisconsin, Massachusetts, New Jersey,

4a See Report of the Employer's Liability Commission of Ohio, Part I, p. XVIII.

Illinois, Kansas, California, Michigan, Nevada, New Hampshire, Rhode Island, Maryland, Arizona and the Federal Government.

Prior to the enactment of Workmen's Insurance and Compensation Acts, the legal relation of the employer and his employés in the States and the United States. were governed by the common law as modified by statutory liability laws.

Although there have been enacted,-chiefly during the last ten years,-Employer's Liability Laws by the United States and many of the States, they have not essentially changed the fundamental principles of the common law in this respect. The legal relation of employer and employé at common law in both England and United States prior to 1837 in no way differed from that of a stranger and there were no special rules respecting employers' liability. If A was injured on account of B's neglect and not by his own fault, B was bound to compensate A whether A was an employé or not. Since 1837 the Courts have made special rules respecting the liability for accidents in employment. The reason which the courts have assigned for this special body of judge made law is that they are exercising their duty in interpreting the contract of employment. It is to be noted that this body of purely judge made law was in process of making for about seventy years before compensation acts of any kind were passed in the States of the United States, or by the Federal government.

§3. The distinguishing characteristics of employer's liability laws.-It should be noted, that for two hundred and fifty years after the Magna Charta was adopted, it was the law of England that one was liable to those injured by his acts. or by the acts of persons or things for which he was responsible whether the cause of the injury was attributable to the fault of the defendant or not. The first suggestion that

freedom from fault might excuse in such a case was made in 1466, but this rule did not become fully settled in England until 1891. In America there were decisions to this effect from 1820 and after, the most important decisions having been made between 1830 and 1850.5

In a later chapter on The Economic Basis of Workmen's Insurance and Compensation Acts, it is shown that an injured workman does not on the old idea of fault have a cause of action, in theory, against his employer, in to exceed eighteen per cent of all the cases, taken collectively, and in practice this per cent falls below twelve per cent. Impressed by this hardship upon injured workmen and their dependents, congress and the legislatures of some thirty of the States of the United States have enacted, within the last ten years, a number of employer's liability acts which have largely abrogated the common law defenses, set out in the preceding section.

The following States have by statute abrogated the defense of fellow servant either by general statute or in particular industries (usually railroads): Arkansas, Colorado, Florida, Georgia (since 1855), Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Dakota, Texas, Wisconsin. 6a The Colorado statute is the most striking example of this class since it completely eliminates the defense of fellow servant in every employment.7

5 See "The New York Workmen's Compensation Act Decision" by Dean James Parker Hall, in The Journal of Political Economy, Vol. XLV, No. 8, October, 1911, p. 698.

6 Chapter V.

Ga 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.

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