The Barre daily times. (Barre, Vt.) 1897-1959, 1910-10-01
EMPLOYERS LIABILITY
IN THIS STATE
How Our Present Laws Discriminate.
Humanity and Justice Demand
That Law Should Give Equal
Privileges and Protection.

the Democratic and Republican primaries
promised the enactment of an employ
ers' liability law. Under our present
form Of party government, it is under
stood that platform promises shall be
faithfully kept Two years ago the
legislature failed 10 fulfill the promises
OF the party platforms. This failure
has frequently been the subject OF pop
ular complaint, and the fact that both
platforms for the present year have re-
newed the promises of such a law inn
poses upon the present legislature the
duty Of considering and passing such a
law, if one can be framed that is just
and equitable TO the parties to be af.
fected thereby.
The purpose OF such law, as usually
expressed in statutes, is TO abolish or
modify the common law doctrine Of fell
low servant, to change the rule as to
eontributory negligence and assumption
Of risk. At common law, as it now
stands in this state, the master or en-
ployer has only TO use reasonable care
in selecting worllmen After selection
with such care, he ceases to be liable
to one Of his employees who may be in
lured through the negligence OF another
workman, although such workman proves
incompetent, unless the employer actual
ly knows on ought to know of the in
competency of the workman causing the
injury Generally speaking, fellow
servant or workman is one who is en-
gagged in the same common employment.
For instance, a conductor, brakeman, en-
gineer, fireman, switehman and station
agent may all be fellow servants engaged
in the common employment Of moving
train, and if the railroad company has
used reasonable care in selecting these
various servants, it Is not liable for
damages caused to one servant by an
other This makes an exception TO the
general law OF agency whereby the mas
ter is responsible for the act of the
agent within the scope OF his employ
ment. This exception was not part
of the common law before 1886 in Eng.
land, and not specifically Incorporated
into the law Of this state until 1856
The principal reasons advanced for this
exception to the general law are that
the compensation in the contract Of EN-.
ployment is fixed with the view to a
risk Of an injury from a fellow servant;
that the servant has an equal, if not
better, opportunity to know the compe
tency of the fellow servant than the EN-
ployer, and that he can leave the en-
ployment il he does not care to assume
the burden OF an injury that may arise
from the act of a fellow servant. How
ever valid these reasons may have been
sixty years ago when the fellow servant
doctrine was established as part OF our
law, il is certain that they do not obtain
in our present industrial condition.
Wages are not now determined by the
hazards arising from the ineompetency
or negligence of a fellow servant. Men
who have trained themselves IN some
particular work and fixed their home in
some particular locality cannot leave
their present position without an eco
nomical loss, which renders the change
impractical, and the employees DO not
have the opportunity Or observing the
competency Of fellow servants that the
law assumes they do have The fact
that twenty-one industrial states Of
Europe and nearly all the Industrial
states of this country have either never
had fellow servant doctrine or have
long since abolished or materially modi-
fed it shows that we in this respect
are standing apart from and, as ! think.
in the rear of the progress OF the world.
The doctrine Of contrbutory uegli-
genee is another rule of the common law
that employers liability acts frequently
change or modify. BY the present rule,
the plaintiff cannot recover damages If
the workman killed or injured has in
the least degree contributed to the ac-
cident, however gross and willful may
have been the negligence of the defend
ant. The application Of this rule often
works great hardship II places all the
burden of the loss upon the one least
IN fault and least able TO bear that bur
den and permits exemption to the one
most in fault and best able TO bear the
burden. The most enlightened and hui
name legislation upon this subject 70.
day provides for an apportionment Of
damages between the parties at fault
The jury is given the power to diminish
the damages by such an amount as they
think they should DO, in view of the
contributory negligence of the plaintiff
and render verdict for the balance
against the defendant The mere state
nfent of this proposition reveals its
equity.
The assumption Of risk is another doe
trine OF the common law that is fire.
quently a subject Of complaint BY this
doctrine the employee assumes all the
risk ordinarily incident to the employ
ment, and such extraordinary risks and
dangers as he knows and comprehends
or such as with ordinary care and pru-
dence he ought to know and comprehend.
One of the most serious objections 10
this doctrine arises from the rule as to
the burden OF proof The law now i'm
poses upon the plaintiff the burden of
showing by a prepon:eranec of the evil
denee as an Affirmative part of his case
that the injured person did not know
and comprehend, or in the exercise OF
ordinary care ought not to have known
danger causing the injury. 1t is evident
that in case OF the death of the subject
of the accident, IL is often difficult 20
prove the negative proposition Of a want
Of knowledge and the defendant is
thereby enabled to escape from a just
liability. A similar rule of affirmative
proof rests upon the plaintiff in respect
to eontributory negligence. To make
the law more Just and humane, many
employers liability acts contain the pro-
vision that both contributory negligence
and the assumption of risk shall be mat
tiers Of defense and the burden of PROV
ing either shall rest upon the defendant.
It is my opinion that any satisfactory
er,nfoversi liability act will abolish the