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   Chapter 61 LIABILITY OF EMPLOYER TO EMPLOYéS

Up To Date Business By Various Characters: 5423

Updated: 2017-12-06 00:03


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.

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