The Spokane press. [volume] (Spokane, Wash.) 1902-1939, 1907-01-28
BY JOHN w. WElNlG,
Attorney at Law.

wv ltueIdl JuuSeS-JuuSe Evans
at Louisville, Ky, and Judge Nc
Call at Memphis, Tenn-have re-
Gently rendered decisions holding
the employers liability act, better
known as the LaFollette fellow SER
want act, to be unconstitutional.
Congress has only such powers as
are expressly, or by necessary i'm
plication, conferred on it by the
constitution. Among these Is the
power to regulate commerce with
foreign nations and among thesev-
eral states. 1t was in the exercise
of this power that the fellow SER
want act was passed at the last ses-
sion Of congress, and became a law
June II, 1906 AS it was IAN act to
regulate commerce." it's provisions
were limited to railroads and did
not cover cases of injuries to work
ingmen, caused by fellow servants,
when they were employed in bust
ness other than that of common
carrier
The act in substance was that
every common carrier shall be liza,
BILE to any of its employees, or in
| case of death, to his widow or child,
or next of kin, dependent upon him
for support, for all damages result
| ing from the negligence of any OF
! its officers, agents or employees, or
by reason of any defect, or insult
| ficiency, due to it's negligence, in
its engines, cars or other property.
Judge Evans thinks that the act
in question regulates commerce
within the state, as well as between
states, and is therefore beyond the
power of congress, and unconstitu-
| tional.
Judge Mccall goes even further,
and says that he is unable to bring
| his mind to the conclusion that the
act regulates commerce at all, state
| or interstate. 1t is rather, in his
mind, an enactment by congress Of
a new law on torts, limited to spe-
cial class of cases, and this con-
gress cannot do.
These decisions render timely a
| discussion of the fellow servant
rule, and the purpose of this article
is to call attention to the fact that
the only efficient remedy is through
| the legislatures of the different
states.
| The common law fellow servant
| rule in effect holds hat if an en-
ploye is injured through the negli-
gence of a fellow workman, or be-
cause of defect of machinery, which
became defective through the negli-
gence of a fellow workman, the in
jured man cannot recover from the
employer for such injuries.
The rule was first laid down in
1S41 in a case in South Carolina,
and in the following year, Judge
Story, in a Massachusetts case, rem
| dered a decision to the same effect,
and this latter decision is the foun-
| dation of the rule.
| The reason he gives for holding
the workman cannot recover for
the negligence of fellow workman
is that he takes upon himself the
natural and ordinary risks and
perils of his employment, and the
possibility of injury through the
negligence of a fellow servant is
one; that the servOnt can as effect
ually guard against this peril as
| the employe; that each workman is
an observer of the conduct of the
others and can give notice to the
employer Of any Incompetence, and
that If the employer does not rem
edy the condition, the workman can
| leave the service.
To this it was objected, that
while this might be true, where
| only two or three are employed in
the same department, yet it cannot
apply where one cannot in any de-
| gree control or influence the con-
duct of the other.
To this Judge Story answered,
that that was distinction upon
which 1t would be hard to establish
practical rule, since it would be
difficult to determine when two
workmen were employed near
enough to each other to apply the
rule of no liability. and when they