14. Inability to compel payment of wages in cash; so that employer may pay in truck or scrip not redeemable in lawful

money.

15. Inability to forbid alien labor on municipal contracts. 16. Inability to secure by law union label on city printing. Labor representatives speak of "the ironic manner in which the courts guarantee to the workers: The right to be maimed and killed without liability to the employer; the right to be discharged for belonging to a union; the right to work as many hours as employers please and under any considerations which they may impose." The "irony" is, of course, not intended by the courts. It is the irony inherent in a situation when rules designed to secure justice become futile if not a positive cause of injustice, because of changed conditions.

See also 339. Some Interpretations of the Content of Freedom.

227. SOME COMMON-LAW DOCTRINES1

We must begin with a word or two about the common law in personal injury cases generally. If one person injures another, unintentionally but through want of due care (and due care is what the average prudent man would use in similar circumstances), he is civilly liable to the injured one for the amount of harm, estimated in money, which his want of care has caused. This seems a natural and fair adjustment of burdens. When one is unduly careless, and thereby hurts another, he should make up for it in so far as money can. There are three important additional features of this law:

First, contributory negligence on the part of the injured person defeats recovery.

Second, as a rule of negligence and it is important to bear this in mind a master is responsible for the negligence of his servant while engaged in the master's work. This is on the principle of 'respondeat superior." It is the master who is having the work done; he must insure its being done with reasonable care. Whether he does the work himself, or through an agent, the burden of responsibility is manifestly well placed.

Third, the burden of proving negligence is upon the plaintiff; of proving contributory negligence upon the defendant.

Adapted by permission from Crystal Eastman, Work-Accidents and the Law, pp. 169-88. (Charities Publication Committee, 1910.)

Now in the application of this general law to an employer's liability for negligence which results in injury to his employees while they are carrying on his work, some rather material modifications and changes occur. All these modifications are based on one idea. The law holds that the employer is in a different relation to his employees, because they have made a contract with him in which certain elements are implied. The law assumes that the two parties are free and on an equal footing in making this contract. It is the contract of hire. The servant is not obliged to work for the master, he can take work or leave it, as he likes; but if he takes the work he makes a contract in which the law implies that he assumes certain risks. (1) He assumes the risk of all the ordinary dangers of the employment. (2) He assumes the risk of all extraordinary dangers, such as those which arise from defective machinery and an unsafe place to work or from hasty and dangerous methods, if he knew about these, or might reasonably be expected to know about them and accepts the work in spite of them, or if he finds out about them, or might have found out about them with the exercise of ordinary care, and continues working in spite of them. (3) Finally, he assumes the risk of all dangers arising from the carelessness, ignorance, or incompetency of his fellow-employees.

1. The first is simple and, comparatively speaking, reasonable. In a large number of modern industries certain accidents are inevitable. It is not as safe to mine coal, make steel rails, or manufacture explosives, as it is to practice law or dig potatoes. If a man chooses one calling rather than another, the danger is his own lookout.

However, it is not merely the risk of accidents happening in spite of every safety precaution and protection, which the employee assumes; he assumes the risk of the work as it is ordinarily carried on. Thus, a telephone lineman gets a shock from an uncovered electric light wire that he touches in passing, and this is an incident of his employment. Or a laborer working in a quarry is badly injured by a heavy stone falling on him; this is a risk which a quarry workman assumes. But again, the handle of a bucket hauling 4,000 pounds of iron out of the hold of a vessel, pulls out, letting the whole mass of iron fall on a workman in the hold. Upon this bucket, which had been used for eighteen years, the handle was merely clamped, while upon newer buckets the handle is forged. Nevertheless, since the plaintiff cannot show that the old and less safe buckets are not still in common use, he cannot hold the employer liable for his injury.

He has suffered from an ordinary danger of his employment, and he took the risk. So much then for this first exception-the employee undertakes to suffer all the risks of his employment as it is usually carried on.

2. The second exception goes farther. The employee assumes all extraordinary and unusual risks, not incident to his employment, if he knew or could reasonably be expected to have known of the danger, and continued working. He assumes all patent risks and all latent risks of which he is informed. For instance, a seventeen-year-old girl working in a laundry called the attention of a foreman to a loose board in front of the rolls where she was working. She said it interfered with her work, but made no definite complaint with regard to its danger, and she went on working. Nothing was done. Finally, while she was cleaning the machine, the loose board flew up and threw her hands between the rolls, where they were crushed. She could not recover damages for this injury, because she had assumed the risk of a condition which she ought to have known was dangerous. Or again, a man working near a defective crane is injured by its breaking. There is no evidence that he knew of the defect, but it had been plain for three months. "He ought to have known of it." In this case, as in many, we see how the very obviousness of the defect, which it seems should fix the responsibility upon the employer, is a means of his avoiding responsibility.

There is, however, one exception to this rule of the law. If an employee, when he sees a defect or a possible danger, complains of it to his employer or to his superior who is directing the work, and if the employer or his superior promises to repair it, and if the employee relies upon the promise, and if the danger is not imminent-then the servant is relieved of his assumption of risk even though he continues to work; provided, however, that if the employee continues to work after a reasonable time has passed without the promise to repair being carried out, then he is deemed to have "waived" his objections, and "assumed the risk" again. This valuable exception is well hedged about with "ifs."

3. Finally, the employee assumes all risk due to the negligence of fellow-employees. This is the most vital distinction between the general law of negligence, and the law of negligence as between master and servant. "A master is responsible for the negligence of his servants in course of employment without regard for their reputation except in case of fellow-servants." As between the master and a

servant injured, it is only demanded of the master that he shall have taken due care in employing fellow-servants of ordinary skill and carefulness. To illustrate: Suppose a yard master in Philadelphia, by reputation a reasonably careful man, puts a car of dynamite at the end of a train of cars instead of in the middle, as the rule of the company requires, and because of this carelessness the dynamite is blown up in a collision many miles from Philadelphia. A cow browsing in a field near the track and a station agent keeping his lonely post in a small country station are both blown to pieces. Now in such a case the farmer could recover for the loss of his cow; but the station agent's widow could not recover for the loss of her husband because he was a fellow-servant of the man whose mistake or carelessness caused the accident. Yet he had no more to do with that fellow-servant's act, or with the employment of him, than the farmer's cow had.

Almost every element of unfairness in this law arises, I think, from one misconception; namely, that the two parties are on an equal footing. In the eyes of the law, every workingman, from the trained American locomotive engineer with a strong union behind him, to the newly-landed "Hunkie," tongue-tied and bewildered, is on an equal footing with the United States Steel Corporation in all its masterfully concentrated power. In the contract of hire, the law assumes that the workman is as free to accept or refuse a job as the employer is to take or drop him. In the matter of the release, the law assumes that the stricken and terrified widow of an ignorant laboring man is in a position of equal understanding and enlightenment, in regard to the respective interests of the parties, with the hardened claim agent employed by the corporation. The law is behindhand, and the lawmakers have been blind. With their minds thoroughly steeped in old ideas of theoretical equality and freedom of contract, they have gone on, content with the "logic of the law," oblivious to the actual facts.

G. Some Structures Designed to Meet the Difficulties

228. A PROGRAM OF REFORM

The Federal Council of the Churches of Christ in America is a national federation of 30 church denominations and communions. The following principles, which have come to be known as "The Social Creed of the Churches," were adopted by the Federal Council at its meeting in,Chicago on December 9, 1912.

The Churches must stand:

For equal rights and complete justice for all men in all stations of life.

For the protection of the family, by the single standard of purity, uniform divorce laws, proper regulation of marriage, and proper housing. For the fullest possible development for every child, especially by the provision of proper education and recreation.

For the abolition of child labor.

For such regulation of the conditions of toil for women as shall safeguard the physical and moral health of the community.

For the abatement and prevention of poverty.

For the protection of the individual and society from the social, economic, and moral waste of the liquor traffic.

For the conservation of health.

For the protection of the worker from dangerous machinery, occupational disease, and mortality.

For the right of all men to the opportunity for self-maintenance, for safeguarding this right against encroachments of every kind, and for the protection of workers from the hardships of enforced unemployment.

For suitable provision for the old age of workers, and for those incapacitated by injury.

For the right of employees and employers alike to organize for adequate means of conciliation and arbitration in industrial disputes. For a release from employment one day in seven.

For the gradual and reasonable reduction of the hours of labor to the lowest practicable point, and for that degree of leisure for all which is a condition of the highest human life.

For a living wage as a minimum in every industry, and for the highest wage that each industry can afford.

For a new emphasis upon the application of Christian principles to the acquisition and use of property, and for the most equitable division of the product of industry that can ultimately be devised.

229. THE ORGANIZATION OF THE LABOR MARKET1 Any comprehensive and workable campaign for the prevention of unemployment should emphasize the following lines of activity: (I) establishment of public employment exchanges; (II) systematic Adapted by permission from J. B. Andrews, "A Practical Program for the Prevention of Unemployment in America," American Labor Legislation Review, V (1915), 176-92.

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