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FLOYD R. MECHEM, OF CHICAGO.
The subject upon which I shall undertake to speak, is that of Employer's Liability. By this is meant in this connection, the employer's liability to his employees and not to third persons, and his liability to the employee, not for wages, but to make compensation for injuries received by the employee in the employer's service. It is a subject which just now is receiving a great deal of attention in many quarters, and much is being said about it, often, as it seems to me, wisely, and often unwisely. It seems, therefore, that it is worth while to try to state the situation as it is, in order that we may more clearly see what the remedy may be. What I shall have to say will be largely confined to the purely legal aspects of the question, since it is only with reference to those that I have any claim at all to speak.
There can be no doubt at all that with the progress of civilization, and the development of industry, radical changes in the conditions under which industrial occupations are carried on, have been brought about. The time when the employer worked with his men; when his employees were few in number. and were made up of a few journeymen and apprentices, most of whom lived with him and formed part of his family, is apparently gone never to return. The introduction of the factory system, the development of railroads and mines, the expansion of machinery, the enormous use of steam and electricity, have not only worked great changes in the conditions of labor, but have made it vastly more complicated and dangerous.
Not only has the work been made more complicated and dangerous, but the great growth of the labor saving machine.
has tended strongly to break up many of the old trades, and to turn men into mere machine tenders instead of mechanics. The natural consequence of this has been to make men more and more dependent upon the machine-operated industries, and thereby to diminish their independence and power of initiative.
Not only has the physical danger been increased, but constant work in factories and similar places has tended to develop diseases peculiar to particular trades and industries, and the so-called "occupational disease" has become a well recognized institution.
The result of all these causes has been that we have reached a situation when the carrying on of our great industrial occupations causes a great number of deaths and disabling accidents every year, and leads to the breaking down of the health of a large number of workers.
This situation is not by any means confined to the working classes. The increased strain and stress of modern life affects us all, and disease and death take their toll from every rank; but for the time being we may confine our attention to the effect upon the so-called working classes.
There can be no doubt that the burden of industrial injuries and occupational diseases falls heavily upon those who directly and indirectly are affected by them, and many persons are looking for means by which this burden may be lightened, or spread in whole or in part upon other shoulders.
It is urged that some method ought to be devised by which the worker who becomes the victim of industrial disease or accident shall be entitled to claim compensation from somebody, and the person who seems to stand nearest to the case and to be able to make such compensation is the employer, and it is therefore urged that he should be made liable for them.
In dealing with this question it may be desirable to begin with a statement of the general rules of law already existing and designed to furnish protection to the employee, and to follow this with a consideration of the matters which are thought to make the existing law deficient for the purpose. Stated affirma
tively, it will be seen that the law places upon the master a number of duties designed to protect the servant against injury. Thus the law requires of the master the exercise of ordinary care in furnishing and keeping in repair a reasonably safe place to work; in supplying and keeping in repair reasonably safe tools, machinery and appliances; in employing and retaining reasonably competent servants; and in making and enforcing reasonable rules and regulations for the conduct of the business. Where the servant is young and inexperienced the law requires of the master that he shall inform the servant of and warn him against the dangers of the business known to the master and not obvious to the servant. These duties of the master are in many cases enforced with much strictness; and no one can read the cases which are constantly arising without being impressed with the fact that there is a growing tendency to enlarge and emphasize these duties of the master. Wherever the master fails to perform his duties in any of these respects, he is deemed in law to be negligent, and is responsible for the injury to the servant which directly and proximately results from such failure. If the master confides the conduct of his business to a general manager or superintendent, the master is responsible if such manager or superintendent fails to perform the master's duties. These duties of care for the servant's protection are generally said to be non-delegable or non-assignable, and if the master does attempt to assign or delegate them, he remains liable for the non-performance of them even though he has exercised all due care in the selection of the servants or agents to whom they were so assigned or delegated.
Notwithstanding the general rules thus referred to, it is contended that there are other principles of the law which make the security of the employee less complete than it seems to be; and it is to these that I wish chiefly to direct my attention.
The subject is a very complicated one, and it is obviously impossible within the space of time which can be allowed it here to undertake to deal with all aspects of it, and I shall therefore devote my time almost exclusively to three phases,
which are usually most called in question, namely, to the socalled fellow-servant doctrine, the doctrine of the assumption of risk, and the doctrine of contributory negligence.
I shall take up first the so-called fellow-servant doctrine, which, stated in its most general form, is that the master is not responsible to a servant for injuries caused to that servant by the negligence of a fellow servant. It is true that it does not prevail in this broadest form in Illinois, but I shall deal with it first in its general form.
The fellow servant rule as it generally prevails is a defence very frequently made in actions by employees against employers for injuries incurred in the service, and it undoubtedly operates to prevent recovery in a great number of cases. By reason of this fact it has been often criticised or condemned, and many harsh things are said by laymen concerning the rule itself and the courts which enforce it to the disadvantage of the injured employee. It is often declared to be a totally unwarranted exception to the general rule, and courts are often condemned for depriving employees of what it is declared would otherwise. be their natural and proper right of recovery. The employer, it is said, is liable to some persons for the negligence of his employee, why should he not be liable to all persons? It is undoubtedly true that we are in this age so familiar with the notion that an employer or master is responsible in many cases for the acts of his employee or servant that we perhaps naturally come to regard that as the ordinary and usual rule, and the assertion that it does not apply for the protection of every person as an endeavor to establish the exceptional. It may be worth while, therefore, to spend a few moments in endeavoring to determine the origin of the rule that a master is responsible in any case for the misconduct of his servant.
Starting at the beginning therefore, we may ask ourselves why should one person ever be responsible for the wrong conduct of another? The dictates of natural justice would seem to lead to the conclusion that every man should answer for his