The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1908-03-08

meets with a collision and is blown
up A cow browsing in a field near
the track and station agent keep
ing his lonely post in a small ,5oun-
try station next to the field, are both
blown to pieces. Now the farmer can
recover the loss of his COW; but can
the station agents widow recover for
the loss of her husband? No, because
he was fellOW-SerVant of the man
whose mistake or carelesSneSs caused
the accident, and yet he had no more
to do with that fellow-servant's act
Or with the employment of him than
the farmer S low had. The question of
who are fellow-servants is naturally
of paramount importance in applying
this rule of the law. In general. all
who work for common employer and
In pursuit of the same purpose are
feLow-servaGts, whether they work
side by side or miles apart. For in
Statlce, brakemen, conductors. engi-
neerS, and fremen ON the same or
different trains of one road are fell
low-Servants. Train crews, track
hands and car repairerS are fellow
servants. Car inspectors and conduc-
tors, station master and engineer have
been considered fellow-servants A
store has been held to be feMow-ser-
want of boy running an elevator in
the store. And further, until the sign
ing of the Casey aSt, June 10, 1907,
fOremen, bosses and even SuPerinten
dents were, as a rule, considered fell
low-servants of the men under their
control or in the same employ. Even
though an accident happened to an
employe by the direct orders of SUI
perior, the employer was not liable
because the superior was held to De a
fellow-servant of the injured man. The
Casey act, however, has done away
with this most unreasonable feature
of the fellow-servant rule by putting
foremen, bosses and superintendent
into the class of vice principals for
whose acts the employer is response
BILE, thereby taking them out of the
class of fellow-ServantS. But 1t still
leaves the emplOye assuming the
risk of the carelessness or incompe-
tence OF all mere employees like HIM
self, whether they are working Shout
der to shoulder with him or a thou
sand miles away.
These three notifications of the
general law of negligence are often
spoken of as the assumption of risk
rule" and the ''fellow-servant rule;
but it seems a little more logical TO
put them all in one group. as desig-
mating what is meant by the implied
assum ption of risk in the servants
contract of hire.
Now, there is another way of stat
ing the liability relation between EN-
ployer and employe. 1t is often said
that the employer has three absolute
duties to perform: % to provide a
reasonably safe place TO work; CD
reasonably competent fellow-em-
pIeyes; CD instructions when reas-
onably necessary. But when one hnds
that the standard Of performance in
all these duties is common usage, and
that they are further hedged about
by the three defenses We have just
discussed. it is clear that this Is mere
ly a positive statement OF what mas
here been stated negatively.
We have seen that the three-fold
assunlption of risk furnishes the en-
-nlover three possible lines of defense
10 an action for damages. 1t must
now be remembered that there Is sum
another defense open TO him-contrlh
utory negligence. The employer can
escape penalty of his own negligence
~ he can show that the employe, by
his own negligent act Or omission,
contributed to his injury. This We
have seen is true with regard TO the
law of negligence in general But in
these master and servant cases the de-
Tense of contributory negligence, al
though .arhaps theoretically reason
able works hardship oftener than IL
FORKS Justice. Recklessness. is COM
mon among wOrkmen. especially those
doing dangerous work. For instance,
hrakemen will ride on the pilot OF
an engine unnecessarily. or member
of the track gang who is ordered Dy
his foreman to cross the tracks, VIII
go between cars instead OF around
Them. One could multiply instances
of this endIessly. | think that what
is called "careleSsness' among work
ing men could be divided into three
kinds. Some of it is boyish dare-dev-
iItry: some of it, especially in the
case OF these dumb, bewldered fer
eieners, is stupidity and awkwardness.
Rrt. most of it, | think, is a kind or
freedom and fearleSsness which goes
with dangerous work and is necessary
TO il. Imagine a structural iron work
err who was careful of himself How
long would he hold his job?
Important Feature.
There is one important feature OF
the law. perhaps the most important,
in the actual working of 1t, which has
only been mentioned in passing as yet.
In all these cases of negligence, the
burden of proof is on the plaintin. 1t
is not enough that the evidence which
he offers should be equally consistent
with negligence on the part Of the en-
pIover. and with no negligence. In
other words, he must make out pref
ty good case of negligence to- begin
with. If he fails in this, he Is non,
suited. One hears on every side tnst
if YOU can get case of this KIND
before the jury, say the case OF an In
iured man or widow and cnildren
against corporation, the jury is hkeiy
to be with ycu- Perhaps this is, IN a
measure. true; but the difficulty is in