Persons who are employed in mills, in erecting buildings, by railroad
companies, and others, are frequently injured while pursuing their
employment, and the question has often arisen whether the employer was
liable for the injury thus suffered by them. The more important of
these questions we propose to answer in this and the following
lecture, as they are matters of every-day importance to many people.
First of all, an employé to recover anything for the loss that may
have happened must show that in some way _his employer was negligent_.
He cannot get something simply because he has been injured. The law in
no country has ever said that he could. In all cases he must show that
his employer failed in his duty in some way toward him to lay the
foundation of an action against him. This is the first principle to
keep clearly in mind.
Again, it is said that an employé cannot recover if the injury has
happened to him in consequence of the negligence of a fellow-servant.
By this is meant a person engaged in the same common employment. It is
not always easy to determine whether two persons employed by the same
company are fellow-servants, as we shall soon see, but the principle
of law is plain enough that in all cases where they are thus acting
as fellow-servants they cannot recover for any injury. The law says
this is one of the risks that a person takes when he enters the
service of another. Suppose a person is at work mining coal and is
injured by another person working by his side through his negligence.
However severely injured he may be he cannot get anything, because the
person through whose negligence he has been injured is a
fellow-workman.
But many employés may have the same common employer and yet not be
fellow-servants. For example, a brakeman would be a fellow-servant
with the conductor and engineer and other persons running on the same
train or on other trains belonging to the same company, but he would
not be a fellow-servant working in the same line of employment with
those who are engaged in the repair-shop of the company.
This statement is quite sufficient to show the difficulty there is
sometimes in deciding whether a person is a fellow-servant or not. If
a person is injured through the negligence of another employed by the
same company who is not a fellow-servant, then he can recover if there
are no other difficulties in the way, otherwise he cannot. It does not
follow that fellow-servants are of the same grade or rank; the test is
whether they are acting in the same line of employment. The brakeman's
position is not so high as that of the engineer or conductor, yet all
three are acting in the same line of employment, and if any one of
them was injured by another in that part of the service the employer
would not be liable.
In a very large number of cases, therefore, employers are not liable
for accidents happening to their employés, because they are injured
through the negligence of other employés engaged in the same line or
subdivision of the common service. Perhaps employers escape more
frequently on this ground than on any other from paying anything for
losses.
Yet there is another ground on which they often escape paying
anything. An employé is supposed when making his contract with his
employer to take on himself all the ordinary risks arising from his
employment. These in many cases are very numerous. He does not assume
extraordinary risks, but he does assume all ordinary risks that are
likely to happen to him. Employés are injured every day and yet can
recover nothing, because their injury is simply a common one, the risk
of which they have assumed.
Would it not be possible to make an employer liable for them all?
Undoubtedly an employé could make a contract of this kind if he wished
and his employer was willing to do so, but if they did the employer
would be unwilling to pay as high wages. The greater the risk assumed
by the employé the larger is the compensation paid; the one thing is
graded by the other. It was stated when considering the rights and
duties of common carriers that they have been lessening their
liabilities; on the other hand, they are carrying for smaller prices
than they once did. Doubtless a carrier would be willing to assume
more risks--every kind of risk, in short--if he were paid enough for
it, but shippers ordinarily are willing to assume many risks for the
sake of the lower rates and insure their risks in insurance companies.
Just so the working-men prefer higher wages and assume many risks of
their employment. There is nothing unfair in this. For example, the
persons who are engaged in making white lead run an unusual risk in
pursuing their employment. It is said nowadays that if they use the
utmost care in protecting themselves from inhaling the fumes that
arise in some stages of this process, they can live quite as long as
other people. But unless they do exercise every precaution their
system finally becomes charged with the poison that arises from this
process and their lives are shortened. They well understand this
before beginning the work; they are told of the risks and are paid
high wages. If, therefore, they undertake such employment, well
knowing the risks, they have no right to complain if their health
after a time suffers. No fraud has been practised on them, and we do
not know that they do complain if they suffer any ill effects from
their work.