The American Journal of Sociology/Volume 06/Number 3/Courts and Factory Legislation
THE COURTS AND FACTORY LEGISLATION.
WITHIN the past fifteen or twenty years statutes have been enacted in nearly all the great manufacturing states of this country which under various names, such as factory acts, mine laws, labor laws, railroad laws, building laws, and the like, have for their common object an increase in the safety of working people engaged in dangerous occupations by obviating dangers not necessarily inherent in the trades themselves.
These statutes take various forms ; frequently in forbidding the employment of certain classes of workers (as women and children of tender years) in highly dangerous occupations; in directing the manner in which certain work shall be performed, by prescribing the particular precautions for the safety of employes which shall be taken by employers, and by providing for certain safety appliances upon machinery or rolling-stock which shall render the chances of personal injury to employes less imminent. The propriety, and even necessity, of what is called factory legislation, in its general principles, is rarely dis- puted now. The danger of employment in manufacturing estab- lishments increases yearly with the perfection by modern inventive genius of complex, rapidly moving, and dangerous machinery. The number of death cases and cases of serious injury in manufacturing establishments increases yearly in pro- portion. In New York the report of the factory inspector for 1899 shows that in this state alone the number of workmen killed per annum in industrial establishments was more than twice as large as that of the soldiers killed in the Spanish war ; and shows further that, leaving out of consideration the death cases (involving the destruction of some seven hundred lives), the casualties involving crippling, maiming, and wounding would show "probably not fewer than forty thousand injuries all told." Under such circumstances appropriate legislation to reduce the number of casualties by making safer the conditions of employ- ment is amply justified, and statutes having such humanitarian
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objects in view should be entitled to most favorable considera- tion and construction by the courts, that the purposes of their enactment should be attained.
This form of legislation is based upon a modern theory of social economy which, long since recognized and followed by the legislatures, is in some states still regarded with' concern and suspicion by the courts ; a theory which, ordinarily masquerading under the conveniently vague name of "police power," justifies "class legislation " so-called, and asserts the right to interfere with the natural laws of the business world, aiming to secure the liberty of one class by curbing the license of another. It is per- haps needless to say that the doctrines of the common law regarding the reciprocal relations of master and servant were formulated and adopted under a totally different conception of economic philosophy under the old laissez-faire theory of extreme individualism. This theory resolutely closed its eyes to com- mon, obvious, social, and economic distinctions between men, either considered as individuals or as classes, and with self- imposed blindness imagined rather than saw the servant and his master acting upon a plane of absolute and ideal equality in all matters touching their contractual relation ; both were free and equal, and the proper function of government was to let them alone. If the servant was dissatisfied with the conditions of his employment ; if the dangers created, not merely by the necessities of the work, but by the master's indifference to the safety of his men, were in the eyes of the latter too great to be endured with prudence, then, being under this theory a "free agent" to go or to stay, if he chose to stay he must take the possible conse- quences of personal injury or death. The laissez-faire doctrine became firmly imbedded in the law, and upon it the doctrine of "assumed risk," in the modern application of the maxim, Volenti non fit injuria? is unquestionably founded.
Under this theory the rules of the common law regarding the rights and duties of masters and servants were established before the commencement of the general legislative movement toward regulative statutes and factory laws. One of the best-known of
1 " To the willing one no legal injury can occur " is a translation often given of the maxim. these rules is the so-called doctrine of "assumed risk." There is no practical distinction in principle between this doctrine and that involved in the Latin maxim, but in this country the principle involved is more frequently discussed under the former name than the latter. The principle maybe stated thus: A servant, by entering upon and continuing in a given employment, by the fact of such continuance is presumed to have voluntarily assumed the risk of personal injuries he may receive, by reason of the ordinary dangers inherent in the employment, by reason of any defect not necessarily inherent in the employment which he knew and understood as a danger before injury received, whether such defect was occasioned by his master's failure to perform his common-law duty of furnishing his men with a safe place to work or not. This doctrine is one of the commonest and most successful defenses interposed by employers in this country in actions brought against them by their injured employés. In most of the American states the question whether the servant assumed the risks of personal injury from defective appliances has been treated as a matter of law for the judge to determine, and the continuance in employment with knowledge and comprehension of defects from which personal injuries are afterward received has been ordinarily held sufficient to authorize and require the trial judge to take the case from the jury and dismiss the plaintiff's action. Under the ordinary American rule continuance at his work by the employé with knowledge of a dangerous defect in machinery or in his place of employment can mean but one thing—a conscious, willing assent to the continuance of the danger to his life or safety, and a voluntary assumption of all chances of personal injury from it, absolving the master from all responsibility for such injuries, even if this defect exists by the master's carelessness or indifference to the employé's safety. Even if the workman protests against the exposure of his life by such defect, if he keeps at work he assumes the risk he protests himself unwilling to assume. A somewhat different rule is adopted in England, where the question whether the workman voluntarily took his chances of being injured is for the jury to say from the circumstances.[1]
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Such being the American rule as to the ordinary negligences of the employer to do his legal duty in furnishing his workman a safe place to work, or safe tools and appliances, is there any different rule properly invoked when the master neglects to comply with a specific, definite, statutory duty ? In case a statute makes it mandatory upon the employer to take certain precau- tions, to use certain safety appliances in his business, and he neglects or refuses to comply, does the workman who knows of his employer's neglect to comply with the statute, assume the risk of personal injury which may result from the latter's refusal to obey the law ? If he does, then the statute is no protection to the workman, and is utterly worthless as far as its enforce- ment by ordinary suit at law is concerned. The answer to this question, moreover, will determine whether the courts will recog- nize and sustain the economic theory upon which such remedial statutes are framed, or will resist and nullify the application of that theory by upholding the laissez-faire doctrine upon which the old rule of assumed risk is founded. The modern economic theory which is the justification of factory legislation and laws regulating the hours and conditions of labor for the protection of the working classes has been recognized and approved by the United States Supreme Court recently, in the great Utah eight- hour law case in which the court, in the opinion by Judge Brown, used the following significant language :
The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments [mining plants] and their operators do not stand upon an equality, and their interests are in a certain extent conflicting. The former naturally desire to obtain as much labor as possible from their employes, while the latter are often induced, by fear of discharge, to conform to regula- tions which their judgment, fairly exercised, would pronounce detrimental to their health and strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly
interpose its authority But the fact that both parties are of full
age and competent to contract does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract be pro- tected against himself. The state still retains an interest in his welfare, 400 THE AMERICAN JOURNAL OF SOCIOLOGY
however reckless he may be. The whole is no greater than the sum of all its parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer. 1
Under this theory, it is apparent that the question which we are considering involves an important matter of public policy. In an employment so dangerous (if necessary precautions be not taken) that great numbers of working people are exposed to avoidable dangers to life and limb, and when (recognizing the interest which the state has in the welfare of the citizen) the legislature has interposed its authority in enacting regulative statutes, does not public policy require that such statutes should be mandatory, and not subject to constructive or actual waiver by the persons for whose safety they are framed ?
The English courts answer this query in the affirmative. Statutory duties imposed upon the master for the greater pro- tection of the servant may not be waived by the latter. Public policy forbids it. In Baddesley vs. Lord Granville (10 Q. B. 423) an action was brought for the death of a miner caused by a violation of the Coal Mines Regulation Act, which requires that a banksman be kept at the mouth of coal pits while miners are going up and down the shaft. The court held that the fact that the deceased knew that no banksman was employed by defendant and yet continued to work at the mine did not con- stitute a defense. Says Baron Wills :
There should be no encouragement given to the making of an agreement between A and B that B shall be at liberty to break the law which has been
passed for the protection of A If the supposed agreement between
the deceased and the defendant in consequence of which the principle of volenti non fit injuria is sought to be applied, comes to this that the master employs the servant on the terms that the latter shall waive the breach by the master of an obligation imposed upon him by the statute, and shall connive at his disregard of the statutory obligation imposed on him for the benefit of others as well as himself such an agreement would be in violation of public policy and ought not to be listened to.
In New York the question whether the statutory duties imposed on employers to guard cogs, gearings, etc., under the Fac- tory Act could be waived by the employe continuing his work
'Holden vs. Hardy, 169 U. 8.380. See also TIEDEMANN, On Police Powers, % 181 ; People vs. Horner, 149 N. Y. 195. COURTS AND FA CTORY LEGISLA TION 40 1
after he knew of his master's violation of this law has been considered several times. In the case of Simpson vs. the New York Rubber Co. (80 Hun. 415) the general term of the supreme court held that public policy forbade such waiver. 1
This decision has been in effect reversed by the court of appeals in a later case involving the same question, and in which it was held that the employe may by entering upon the employ ment with full knowledge of all the facts waive, under the com mon-law doctrine of obvious risks, the performance by the employer of the duty to furnish the special protection pre- scribed by the Factory Act. This case (Knisley vs. Pratt, 148 N. Y. 372) passes lightly over the question of public policy, without giving it consideration except by saying that to hold that the workman could not waive his master's statutory duty by continuing at work was "a new and startling doctrine cal- culated to establish a measure of liability unknown to the common law, and which is contrary to the decisions of Massa- chusetts and England under similar statutes." The decision of other states and of England affirming this "new and startling" doctrine are not considered at all, and the court's attention does not seem to have been called to them by plaintiff's counsel in his brief. The decision is based largely upon supposed anolo- gies between the case at bar and English and Massachusetts cases on employer's liability acts. These latter cases held that the English act (that of 1880) and the substantially simi- lar Massachusetts law of 1887 (neither of which created or
1 In the opinion in this case, Cullen J., after discussing the rule that statutory rights in which public policy is not involved may be waived, says : " But is there no question of public policy involved here ? To our mind there is, and that public policy should induce us to hold, unless a contrary doctrine is settled on authority, that this statutory protection cannot be waived. Our notion of government has confined state interference with the freedom of individual action within narrow limits, but such interference has never been utterly prohibited. Experience has shown that in some
matters persons must be protected from their own imprudence The state has
great interest in the protection of its members, and this even of the most utilitarian character. In the case of a maimed employe" he and his family are likely to become a public charge ; the community would seem to have as much an interest in the pro- tection of the life and limbs of a member of it as in the question whether he should pay 8 per cent, or 6 per cent, interest. Yet by no means which human wit can devise can he make a valid contract to pay more than 6 per cent, interest." 402 THE AMERICAN JOURNAL OF SOCIOLOGY
imposed any new statutory duty on the master) were intended to modify "the fellow-servant doctrine," and not to affect in any way the doctrine of assumed risk. In the Knisley case defendant refused or neglected to obey the mandatory provision of the Factory Act imposing the specific duty upon him of placing guards on cogwheels of his machinery. Owing to the absence of these guards, and apparently not by reason of any personal carelessness, plaintiff's arm was drawn into the cogs and so crushed and torn that it had to be amputated at the shoulder a peculiarly distressing case. In this case plaintiff was a young woman of full age. The New York court recog- nizes no difference in the rule by reason of infancy, however, for in White vs. Witteman Lithographic Co. the same rule under similar circumstances was applied to a child of fourteen. 1 The question of the assumption of "statutory risks" has been adjudicated upon in Illinois in several cases, but the exact question of public policy involved is apparently still undecided by its highest court. The decisions would make the final adop- tion of the English rule more probable (see Litchfield Coal Co. vs. Taylor, 81 111. 590; Wesley Coal Co. vs. Taylor, 84 111. 126; compare Chi., etc., Coal Co. vs. Petersen, 34 111. Ap. 114, with Swift & Co. vs. Fae, 66 111. Ap. 651, and Mo. St. L. & P. R. Co. vs. Thompson, 15 111. Ap. 117). It has been held in Indiana, Missouri, and Illinois that where there is a general public ordinance regulating the speed of railway trains passing near or through cities, enacted for the benefit of the public, an employe of a railroad who continues in its employment with knowledge of the violation of the ordinance (without contrib- uting actively to its violation) does not assume the risk of injury, nor is he by reason of his employment deprived of any of the benefits of the ordinance to which other citizens are entitled. 2
1 131 N. Y. 631; see also Graves vs. Brewer, 4 Ap. Div. 327; De Young vs. Irving, 5 Ap. Div. 499, which contains a pointed criticism of Knisley vs. Pratt, though the court is constrained to follow its authority ; also E. S. Higgins Carpet Co vs. O'Keefe, 79 Fed. 810.
a Pittsburg, etc., R. Co. vs. Moore, admr. 152 Ind. 350; East St. L. R. Co. vs. Eggman, 170 111. 538; 111. Cent. R. Co. vs. Gilbert, 157 111. 354; Bluedorn vs Mo. Pac. R. Co., 108 Mo. 439 ; contra Fleming vs. St. Paul, etc., R. Co., 27 Minn. III. CO UR TS AND FA CTORY LEGISLA TION 403
In Greenlee vs. Southern Railway Co. 1 plaintiff was injured by reason of the failure of the railroad company defendant to comply with the federal law requiring self-couplers and air- brakes to be placed on all freight and passenger cars by January i, 1898. Plaintiff's injuries were due to a defective brake. Plaintiff's recovery, at trial, was affirmed on appeal, the court using the following language :
Six years ago this court said it would soon be negligence per se whenever an action happened for lack of a self-coupler. Congress has enacted that self-couplers should be used. For this lack this plaintiff was injured. It is true the defendant replies that the plaintiff remained in its service knowing it did not have self-couplers. If that were a defense, no railroad company would ever be liable for failure to put in life-saving devices, and the need of bread would force employes to continue the annual sacrifice of thousands of men. But this is not the doctrine of "assumption of risk." That is a more reasonable doctrine, and is merely that when a particular machine is defective or injured, and the employe, knowing it, continues to use it, he assumes the risk. That doctrine has no application where the law requires the adoption of new devices to save life or limb (as self-couplers), and the employ^, either ignorant of that fact or expecting daily compliance with the law, continues in service with the appliances formerly in use.
Two cases illustrative of the diversity of opinion among the courts on this matter of public policy involve statutes requiring railroad companies to fill or block frogs and guard-rails on their tracks. In both cases the actions were for recovery of damages for personal injuries from such unblocked frogs received by employes who continued in the railroad service with knowledge that the condition of the rails was contrary to the statute and dangerous. In one (Narramore vs. C. C. C. & St. L. R. R. Co., 96 Fed. Rep. 298, decided be the United States circuit court of appeals), in the opinion of Judge Taft, the learned justice remarks: "In the absence of statute, and upon common-law principles, we have no doubt that in this case the plaintiff would be held to have assumed the risk of the absence of blocks in guard-rails and switches by defendant." The court held, however, that the plaintiff's rights under the statute could not be waived by con- tinuance :
The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to 1 30 S. E. Reporter (N. C.), 115. 404 THE AMERICAN JOURNAL OF SOCIOLOGY
the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract ; and it would entirely defeat this purpose thus to permit the servant to contract the master out of the statute.
In the other case, Gillen vs. P. & S. R. Co. (44 Atl. 361), the supreme court of Maine held that the continuing servant assumed the risk of injury from the railway's refusal to obey the law requiring blocked frogs and guard-rails. In the Narramore case the New York case of Knisley vs. Pratt was urged by the railway company as an authority for reversing the plaintiff's recovery. The court discusses the case and the authorities upon which the decision was rested, disapproves its conclusions, and refuses to follow it. The New York rule seems to be followed in Ohio (see L. E. & W. R. Co. vs. Craig, 40 N. E. Reporter, 886-73, Fed. 610) and in Minnesota (Fleming vs. R. R. Co., 27 Minn, in). The English rule is laid down in a recent appellate court decision in Indiana (Boyd vs. Brazil Block Coal Co., 50 N. E. Reporter, 368, 1898); also in Missouri (Durant vs. Mining Co., 97 Mo. 62).
In Mississippi the state constitution provides (Art. VII, sec. 193 :
Knowledge by any employe" injured of the defective or unsafe character of any machinery, ways, or appliances shall be no defense to an action for injuries caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. 1
A similar statutory provision appears in the Revised Statutes of Ontario, chap. 160, sec. 6:
.... Provided, however, that such workman shall not by reason only of his continuing in the employment of the employer with knowledge of the defect negligence act or omission which caused his injury be deemed to have voluntarily incurred the risk of the injury.
This discussion has taken greater length than was originally intended. The subject is a comparatively new one, and of obvious and increasing importance. If the writer may venture
i The exception is interesting and suggestive. The railroad lobby, in all states the most bitter opponent of any extension of employers' liability, however reasonable or just, was apparently strong in Mississippi. Any other reason for such an excep- tion it would be difficult to find. CO UR TS A ND FA CTOR Y LEG I SLA TION 405
a personal opinion, it is that the English rule, in cases where no violation of statute is involved, is fairer, leaving it for the jury to say, from the facts in evidence in a given case, whether the work- man who continues to use machinery he knows to be defective should be held to have assumed the risk of injury. It has the merit of flexibility, and is more calculated to meet the requirements of substantial justice in the varying facts of different cases.
As to the violation of regulative statutes framed to secure the safety of the employe, the situation would seem to be simpler. If the conditions of an employment are such as to make such legislation necessary to preserve the lives of employes, such resulting legislation should be supported by the courts instead of being nullified and rendered absurd. A more curious example of the legislative and judicial branches of government playing at cross purposes is scarcely to be found than exists under the current New York rule. It is calculated to bring law into contempt, not only among the working people (whose atti- tude at best toward the judiciary leaves something to be desired), but also among the manufacturers and great employers. Dead- letter statutes of this kind are a luxury which cannot be well afforded in a country whose ultimate source of authority is law.
The attitude of the courts toward factory legislation is of importance to others besides the injured litigant. While it has been said on good authority that the courts in the great manu- facturing states are desirous of diminishing the constantly increasing flood of negligence litigation by discouraging the injured servant from taking his troubles to court, 1 the public, and
1 The preface of the latest edition (1898) of SHEARMAN AND REDFIELD On Negli- gence, a leading authority among the text-books on this subject, contains the follow- ing :
"The stubborn resistance of business corporations, common carriers, and mill- owners to the enforcement of the most moderate laws for the protection of human beings from injury, and their utter failure to provide such protection of their own accord, ought to satisfy any impartial judge that true justice demands a constant expansion of the law in the direction of increased responsibility for negligence, instead of attempts, unfortunately too common, to restrict such responsibility by introducing new exceptions.
"The law of master and servant in its relation to the law of negligence affords perhaps the most striking example in the last half-century of gross injustice done by this disposition to restrict responsibility and suppress litigation." (P. vi.) 406 THE AMERICAN JOURNAL OF SOCIOLOGY
particularly the working classes, are interested in obtaining the same result by diminishing the number of accidents from which alone such lawsuits can originate. Any perceptible diminution in the number of accidents can scarcely be expected when the responsibility of the master for his own negligence to his work- men is nominal and not actual. The prospect of verdicts for large damages actually sustained on appeal 1 in actions brought against him by his injured employes would be a most healthful stimulus to vigilance by the master in performing his legal duties to his men and in giving reasonable care to their safety. A reasonable modification of the assumption doctrine would, moreover, make unnecessary the greater part of the regulative statutes applying to particular trades, yearly increasing in bulk and complexity, confusing alike to lawyer and layman in itself a consummation devoutly to be wished.
GEORGE W. ALGER NEW YORK, N. Y.
1 The percentage of reversals on appeal in master-and-servant cases of this kind, when the verdict of the juries in the courts below had been in plaintiff's favor, is per- haps larger than in any other branch of litigation. In New York for example an examination of twenty volumes of the court of appeals reports (126 N. Y. 156 N. Y.) shows written opinions in thirty-seven such cases. Of these (l) in three cases the juries in the lower court had found for defendant, and plaintiff was the appellant ; in (2) four cases the court below had dismissed plantiff's case as insufficient, without requiring defendant to introduce any testimony ; in (3) twenty-eight cases the juries below had found for plaintiff with substantial damages. The court of appeals in class (l) affirmed all of the cases where plaintiff was defeated below. In class (2) it reversed the four cases where plaintiff had been summarily nonsuited and sent the cases back to trial courts to hear defendant's testimony a partial victory at most for plaintiff. In class (3), where plaintiff had actually received a verdict, of the thirty cases twenty-eight were reversed. These statistics are interesting as showing how complete is the lack of harmony between the courts, at least in New York, and the moral sense of the people by whom the courts were created, in regard to these cases. Twice in thirty times do the opinions of the learned judges of New York's highest court coincide with the opinions of juries of citizens as to the requirements of justice.
- ↑ Smith vs. Baker, Ap. Cas. 1891, p. 325.