The Birmingham age-herald., 1911-06-18

| if he so injured fellow servant I am not Why the distinction2 The legal pro- l fession is divided upon the soundness or 1 this distinction. The objection to mak- ing the employer liable under our law l of negligence in such cases, Is, that he would be made liable for a wrong where he has been guilty of no wrong. The 1 European laws avoid this difficulty by making the employer liable, not for full damages, as if for wrong, but for = moderate and limited amount, as an in- surer.
 70 Our law imputes to the employe the assumption or the ordinary risks of the employment, and thereby frees the em- ployer from all liability for accidents due to trade risks. This rule Is based upon the theory that the workman is free 10 accept or reject a specific employment and that if he chooses to accept employment in dangerous occupation he should logically be deemed to have freely as- stunned it's risks. This theory is true In individual cases; but when applied to the working people in the mass it hids great economic fallacy The millions of work ing people in our dangerous industries are not economically free to leave their hazardous employments in body and to seek non-hazardous employments. They must continue at their work or starve. Therefore this so-called free assumption is really an arbitrary imposition by law of the principal physical risks of industry upon one class only-and that class is the class least able and, in fact, absolutely unable to bear them. The old theory that wages in dangerous occupations are higher on account of and in proportion to the increased risk is absolutely contra- dicted by facts.
 What Is Negligence?
 "S The great practical objections to our law is that it is not and cannot be ad- mnistered according to it's theory be- cause every case requires the determina- ton of the question of negligence; and what constitutes negligence is 1ndefined and undefinable and is a subject of radi- cally differing opinions between judges. juries and experts. Every case. there fore, is subject not only to the uncer- tainties, difficulties and delays common to ordinary litigation of questions ot l fact but also to a mere gambling chance of what particular opinion of negligence will finally be applied in determining the result.
 My own investigations, based upon a rather srnall number of specific cases, leads to the conclusion that the chances of the injured workmans recovering le- gal damages by action at law depend little upon. and are in no degree propor- donate to, the theoretical merits Of his case
 Sumum Bonum
 This conclusion is well summarized in the recent report of the New York eoui- mission to investigate employers liability as follows: The present system in New York rests on basis that is economically unwlse and unfair and in operation it is Wasteful, uncertain and productive of an- tagonism between workmen and employ ers
 "The European laws avoid the defects of our laws by passing the liability upon an entirely different legal principle, calico 'coinpensation.' The employer
 is made liable to his workmen for all
 injuries received in the course of the employment twith some varying eXcep- tions generally where the work man has been guilty of serious and wilful mis- conductJ. This liability is not dependent upon the employers being at fault in any way and is not, like our liability for negligence for full and unlimited dam ages. but is approXmat tely that of an
 insurer against all the risks of business to a limited and moderate amount, cal- culated generally t. cover about half of the probable financial loss to the vic tim or his dependents caused by those risks.
 Make Industries Pay
 "rhe economic principle under lying this liability is that industries should pay for lives and limbs destroyed just as they pay for coal consumed and machinery worn out. and therefore that the iinancial losses from injuries should be divided between those who profit from the industries--i. e.. between em- nioyers and employes--to effect which the employers should pay their share of the losses to the injured workmen The European laws differ widely in their application, methods and details. Some aTpy only to comparatively hazardous and organized industries; while others extend to nearly all employments. Some