Los Angeles herald., 1910-09-04
SERVANT
RULE ADVOCATED
Judge BIedSoe Delivers Opinion in
Denying Motion Of Rail-
way in Damage Case
HOLDS STATE LAW is CLEAR
Reasoning of San Bernardino
Jurist Is Similar to That
of Roosevelt

Semi-abrogation of the fellow SER
yant'' doctrine by legislative amend
ment of section 1870 of the civil code
of California in 1907 was upheld yes
terday by Judge Benjamin f. Bledsoe
of San Bernardino in denying a new
trial in the case of G. e. Patton VS..
the Los Angeles-Pacific company. Pat
ton was awarded $12,500 damages for
injuries received while in defendants
employ.
The accident which resulted in the
suit occurred about a year ago, being
a head-on collision between a car on
which Patton was employed as a mo-
torman and another owned by the
same company. Patton was sesiously
injured, being incapacitated for life
because of wounds to hip and knee.
He sued for $685. 900 and the suit was
heard last November before Judge
Bledsoe, who sat in Judge Hervey's
department of the Los Angeles county
superior court. The jury awarded Pat
ton lust half of what he asked, $12,5O0.
Last May the defendant filed a mo-
tion for q new trial, but because OF
Judge Bledsoe's being extremely busy
in other legal matters he was unable
until yesterday to deliver an opinion
in the case.
FELLOW SERVANT DOCTRINE
In asking for a new trial the rail-
wav company contended that it was
not responsible for the injuries to
patton because of the familiar rule of
law generally known as the FELLOW
servant" doctrine, by which employers
formerly in California were not ana
still in many other states are not, held
liable for accidents to their Workmen
If they are caused by the negligence
of fellow employees.
In denying the motion for new
trial Judge Bledsoe calls attention to
the fact that the fellow servant doc
trine was abrogated to a degree by the
legislature of California by an amend
ment to section 1870 of the civil code,
by which employers are made respon-
sible for injuries to employees when
they are caused by fellow employees in
another department Of labor from tnaI
of the man injured.
"It may be said" reads the opinion,
"as to some of the terms and proVis-
ions of the amendment that they are
not as clear and precise as they might
be. This results, / am constrained to
believe, not from any substantial de-
feet in the amendment itself, put
rather from some very evident clerical
errors and omissions In the wording
thereof. Supplying, as the court should
and will do, these omissions, the act,
as a whole, in my judgment, is clear
concise, understandable and suthclent.
CLASS LEGISLATION
"If 1t should be fact, as to which
I express no, opinion, that certain
provisions of the act are subject to
constitutional inhibition as being class
legislation, still, If other provisions ap-
plicable herein, being general in their
nature, are not opposed to the con-
stitution, then, following an elemen-
tary principle of statutory construc-
ton, the court will give effect to those
provisions which are constitutional and
govern itself accordingly"
Judge Bledso declares that had the
injuries of Patton resulted from the
carelessness of a laborer on the same
car with him, the fellow servant" doc
trine would have applied, but that by
the amendment he is entitled to dam
ages because his injuries were inflict-
ed by tho negligence Of fellow work.
man on another car, or another de-
partment of the same general busi-
ness"
"The origin of the fellow servant
doctrine Is enveloped in more or less
obscurity," continues the opinion, land
much difficulty has been encountered
by judges and text writers in giving
adequate and sufficient reason for its
III LIl0 1lISI plebSC' 1NOuuSS0 ~
their last analysis, though, as l un-
derstand them, the reasons given are
based upon either a presumed knowl-
edge of risks by the employe, an i'm
piled assumption of risks by him, or
that 'unruly horse relied upon by
some-public opinion"
CITES CASES
Citing various cases, the opinion
declares: 1T has been determined by
number of courts of seminence, In
cluding the United States supreme
court, that the legislative branch OF
the government has authority to limit,
or even abolish entirely, this fellow
servant doctrine.
"And this must be so, because, If
there is any force or efficacy to be ac-
corded to the universally accepted rule
that the master is liable for the acts
of the servant done in the performance
of the masters business, then that
rule can, and in my judgment, in
proper cases, should be applied not
only as between the master and
stranger, but also as between the mas
ter and an employe who Is not, in
common Justice, co-reSponsible for his
fellow servants act.
'In a number of our commonwealths
such legislation as is above mentioned
has been had, in some instances of a
more drastic and sweeping nature than
that under consideration, and in no
one Of them, so far as l am advised,
has it's unconstitutionality been de-
creed.
Courts, text writer's and publicists
seem to agree that the abrogation Of
the doctrine is lawful, expedient and
necessary for the proper protection and
we'll being of the great body of our
people, the working classes.
"The act under consideration, being
in my judgment of a general nature,
within the scope of the legislative
power and calculated to be of essen
tial and lasting benefit to the great
mass of humanity. should be upheld"
Judge Bledsoe says he did not know
when he prepared the opinion that
Roosevelt was to deliver speeches
along practically the same trend of
thought before the denial Of a new
trial would be decreed.