New-York tribune., 1910-11-01

| the Supreme Court OF Errors Of Connectf-
cut in many opinions
In the first of these written nearly fifty
: years ago tBurke VS.. Railroad, "a Con-
nectlcut Reports. 47e). the court made these
remarks:
The principle relied upon by the de-
tendants. that a master is not liable TO q
! servant for an injury to him occasioned
by the misconduct or negligence of q. fell
low servant, has been so often recognized
/ ooth IN this country and in England that
y must now be considered as settled law.
rule. first, that the employed must be
supposed TO have contracted with refer
enc sIlce 70 the perils Of the business, includ-
ing those which may arise from the char
acter and conduct OF his fellow employees.
ana second. that public policy requires
that each servant should be influenced by
its operation to be not only careful of his
own doings, but as watchfuI as possibl.
over the acts Of his associates. "-Farwell VS..
Met 80
The business of this reasoning has been
quesiloned by high judicial authority. Lit
tie Miami Railroad Company agt- Stevens.
20 Ohio 435. However plausible may be
the theory il is very doubtful whether, in
On a railroad ever made an examination
into the condition OF the machinery. the
mode OF conducting the business, or the
the purpose Of ascertaining the extent of
his risk as an element in calculating the
proper amount Of his wages
A passenger in e railroad car may well
De presumed TO have E vivid consciousness
of his risk, but it has never been under
stood that he contracts with reference 70
it when he buys his ticket so as 10 be his
own insurer. Again. principal is respon-
stble to an empIoye for his own negligence:
agent. over whom the empioye has no con-
troll and OF whom he may have no knovl-
edge?
With respect to considerations OF policy
1t is by no means certain that the public
interest would not be best subserved by
holding the superior. with his higher intel
HSanPA ~ inf
and mis- power or selecting. directing and
dischargine Subordinates, 10 the strtctest
service, whoever may be the sufferer from
Shortly after. came upon the court a
case arose CNolan VS.. Railroad, 20 Connec-
ticut Reports, 1910, in which this same
fellow servant rule was relied upon. We
applied it, as We were bound TO do, but
with the observation that II was TOO firmly
established as law by a multitude OF de-
cisons. to be now reversed or seriously
modified by any exercise of the power vest
ed in courts"
In order to emphasis this intination that
the rule was followed because IL was set
tied law, q note was appended to our opln-
ion. signed by the initials or the justice
who wrote it, containing these statements
The rule (of co-employe) is one dsduced
rendered under a state OF society very dlI-
ferent from that of to-day, and the crystal
lization Of such analogies into bindlns
Il first appeared in England in Priestly
agt. Fowler. and in 1850 was applied to the
employees Of railroad companies. in Hutchi- |
son agt. the York, n. & 3. Railway Com
pany, s each 343 In 1s41 It was formulated |
in South Carolina, Murray agt railroad
company. l MCMILLAN S2S and N isiT IN
well agt the Boston & ". R corporation.
four met 49.
Chief Justice shaw's Opinion.
The very able opinion Of Chief Justice |
Shaw in the last case has largely dom I
mated the law on this subject during the
last 4fty Years and &c contains e IS tae afys mos 81
the grounds supporting the public policy
which compels a workman entering the
risk Of any injury that may be done him
by the master through the misconduct OF
g fellow servant
The vigorous language Of this statement,
however appropriate II may have been al
that time, has touch of grim irony wnen
read in the light Of existing conditions IN
1885, the rule was changed by the employ
ers' liability act, and is now practically
by the workmen's compensation act; passed
during the present 08SO year: The rule
has been dealt with by legislation in sew
eral of our sister states.
II was first formally ecognized in this state
in Burke agt. Horwich and W r. Co. 81
Conn, 474. 479, with a strong protest against
cip1e deemed 700 firmly settled in other
jurisdictions to the differently treated here
Recommended New Law.
In Derrigan agt. New York and y. Z. X
Co., 81 Conn. 284, the application of the
rule was somewhat modified. and possibly
cases may arise where the legitimate exer-
else Cf the dury of the court in applying
esta blished principles TO novel conditions
may involve some limitation Of its apparent
reach. But the evil is too deep seated TO be
renledied by judicial action; II needs radical
treatment through ryise legislation
No change having been made since then
BY the legislation of Connecticut, the rule
was necessarily applied in the Hoxie case.
Subsequently, and on account OF that de-
cision. the federal law was altered so as TO
make II, in terms, applicable to actions in
the state courts
Hoping that this letter may remove any
misunderstanding of my request and that
you will conclude that under the ctrcun1-
stances, il is not an unrea sonable one, I
am yours truly,
SIMEON E BALDWIN