United labor bulletin., 1909-11-12
BY c. "A. Irwin.


In our previous articles we have at
tempted to point out some of the reasons
why the laws permitting an employer to
interpose certain defenses in personal
injury cases are grossly unjust. Let us
now briefly turn our attention to the rule
of law relating to what are termed the
risks ordinarily incident to service. This
rule OF law as recognized and enforced
in America may be briefly stated thus:
Where a person voluntarily enters into
a contract of employment he assumes
all the risks and hazards ordinarily and
usually incident to such employment and
will be presumed to have contracted to
take such risks and hazards upon him
self This rule OF law in its practical op-
GRAFTON is most iniquitous. Courts have
been ingenious in finding excuses to de-
feat injured employees who sue for dam
ages. by finding or pretending to find
some plausible reason whereby to ex.
plain the injury as a usual and ordinary
risk OF the service.
This defense, the assumption of risk.
as II is sometimes called. has been ap-
piled to all sorts and conditions of in
juries. Railroad employees have been de-
feated in suits for damages, in many
cases where their injury resulted from
sudden Jerks and movements of the
train: coupling OF dangerously loaded
cars: collision with cattle or other OBJ
stacles on the track: switch rails I'M
necessarily lower than they should be;
falling into excavations defective run
ming boards. on engines. and ladders on
the cars: and innumerable other defects
which have caused the injury in the
thousands OF similar suits which have
been brought in the courts of this coun-
try. This defense is quito usual in ac-
tions by miners and is one OF the most
common defenses in personal injury ac
tions generally It IS based upon the
theory that one seeking employment is
not bound to accept position which he
knows or ought 10 know involves risks
and perils and that n he chooses to
work In a dangerous occupation he has
no right TO complain. This theory as
sumes that the employe Is free to accept
tho employment or not II assumes that
employer and employe are on equal foot
ing; but master and servant in such
cases are not on an equal footing In
these modern times production and trans
portation are controlled by a compare
lively few persons. The safety of en-
pioyes depends upon the employers. It
is not true that the employe need not
engage in the service unless he chooses
to do So There are large classes OF la
boring men. women and children who
are compelled to earn their living in
dangerous work. They are compelled TO
work in such places and under such con-
ditions as the employer chooses to fur
nlsh in order to keep their job. when to
lose their Job would bring themselves
and their families TO poverty and want
To say to such persons, III you do not
like the conditions OF your Job you may
quit" is hollow mockery.
Again. many lines of employment are
inherently and necessarily dangerous
such as mining and railroading. yet the
performance of such dangerous work is
beneficial to the public at large. highly
profitable to the employer, and often a
public necessity. In such cases the pub
lie is interested in the work being done;
the employer reaps the profit of 1t; and
the employe takes all the risk. Why
should the employe assume all of the
risk? Naturally and inevitable II anyone
is killed or injured It is the employe. II
he is killed, nothing which either the
public or the employer can do will re-
store him to life; nothing this side of
the grave can heal the broken hearts OF
n griefstricken household. If an en-
ploye is injured and crippled for life. the
feelings of shame. humiliation, and in
dignity on account OF such crippled con-
dtion must be borne by him and by
those near and dear to him. These risks
of the service in the very nature of the
case can neither be borne by the public
nor by the employe. Why. in the name
of common fairness and Justice. should
not the employer bear the bulk of the
financial loss resulting from such injury?
The employer reaps the profit of the en-
ployment II he chooses to embark In
dangerous enterprise, why should he not
assume the risk OF injury to his work
menf
Upon what principle can an employer
ask to escape the financial burdens OF
personal injuries any more than the risk
of injury to his machinery and appli-
ances and the general risks of his busi-
ness? He voluntarily operates the busi-
ness for gain: he selects the machinery;