negligence, which is treated more fully in a preceding chapter on torts. The definition of what is ordinary care, or on the contrary, what is negligence, is the duty of the court in the instructions to the jury. What the facts are in the case bearing upon care or negligence are for the jury to decide. The decision, where there is conflict of testimony, is for the jury, acting under the judge's instructions.

Kind of Plant Demanded. Under this phase of the Common Law, the master's duties do not require him to furnish the best, safest, or newest appliances or to change them for new inventions; but the plant must be such as is ordinarily sufficient for the purpose, or such as is in general use, and reasonably safe according to the customs and ordinary risks of the business. The master must not allow his plant to become dangerous through lack of repair or from age and deterioration. For hidden defects the employer is not responsible, and it should be remembered that "defective" and "dangerous" are not necessarily synonymous terms. The standard of care demanded is that of an average prudent, cautious, and skilful man under the circumstances existing. That later events prove that some special device or precautions would have prevented an accident does not tend to show negligence.

Negligence of Employees. Furthermore, the master is not responsible at Common Law for careless, unnecessary, or inappropriate use of an appliance by the employee, or by a co-employee, or for a failure by the employee or co-employee to keep the appliance in repair. The contributory negligence of the employee, or the negligent act of the co-employee, exempts the employer from liability.

Reporting Defects. Upon the employee has devolved some duty to report to his employer any defects or dangerous lack of repair beyond what it is his duty to put in order himself; a failure to do so relieves the employer whether it be as contributory negligence, or the assumption of a known risk of which the employee often has better knowledge than the master; a promise by the employer to repair relieves the employee; but if repair is not made within a reasonable time the employee is deemed to have waived his objections.

Opportunity of Disagreement. The opportunity for a conflict of interests or for a disagreement as to facts in these matters makes a lawsuit probable and entirely reasonable. The legitimate purpose of a suit is to settle just such matters.

Care in Selecting Employees. Where the fault lay in the wrongful act of a co-employee, the question often arose whether the employer exercised proper care in the employment of the co-employee; this was quite true in general, but was of peculiar importance where the co-employee held some superiority of position or authority. The question of the em

ployer's knowledge, or duty to know, as to the character of the co-employee has been again a source of controversy as to the facts.

Regulations for Safety. The employer again owes a duty to exercise control over the business through proper regulations for its safe conduct. How far an accident is due to imperfect control by the employer, and how far to lack of obedience by employees, may become a source of controversy.

Warning against Danger. The employer furthermore owes a duty to warn or to impart to the employee knowledge of latent dangers or special precautions within the knowledge of the employer and unlikely to be appreciated by the employee unless specially informed, but not of such dangers as the employee might equally appreciate; such risks the employee assumes with the service.

Who are Co-Employees? A further question has been the subject of controversy, and with different rules prevailing in different States. Who are fellow-servants or co-employees? If an employer carries on several distinct lines of business, the employees in one line are clearly not coemployees of those in another line. If two such lines of business are combined, and the two sets of employees seldom have contact with each other, in some States they are co-employees and in others not.

Vice-Principal. It is further held in some States that certain employees have sufficient authority so that they occupy a position of " vice-principal and their acts are the acts of the employer and not of a co-employee. In 1884, the U. S. Supreme Court held that the wrongful act of the conductor of a train was the act of the railroad company, and not of a co-employee, in a case where the locomotive engineer of another train was hurt in a collision. This was a new application of the Common Law to meet modern conditions, and at the time occasioned much comment. The rule has not prevailed in all States. The various States are each sovereign and are not controlled by the U. S. courts, although the opinions of the latter always have great weight, as has been stated previously.

Contributory Negligence. The question of contributory negligence has been briefly referred to. The courts in the various States do not follow a uniform rule. In general, if the employee had shown negligence which proximately contributed to the accident, the employer is not liable. In applying this rule some difficulty results. In some States there is a modification of the doctrine known as "comparative negligence," where some small degree of negligence by the employee is unimportant if gross negligence occurred on the part of the employer. Due to the somewhat divergent views of the courts in different States, and the uncertain action of juries, together with the question as to how far the court and how far the jury determines in a specific case whether contributory negligence existed to free the employer from liability, the abstract question of responsibility

is not for any layman, engineer, or otherwise to determine as assuring the outcome of a lawsuit when this question is involved.

Master and Servant Rule Unsatisfactory. The law of master and servant, taking into account its developments, was not in its essence bad law, but under modern conditions its operation had proved very unsatisfactory. In the case of large business concerns, whether corporations or not, the employee had no remedy in the case of hidden defects; obvious defects he must report, and unfortunately persistent effort in this direction on his part sometimes meant dismissal. Furthermore, the opportunity to raise questions of law and questions of fact was unusually great in the event of a trial at law.

If the employee was injured his employer had adequate financial resources to employ able lawyers and to secure technical expert testimony for which a fee of fifty dollars a day was not unusual. In most cases neither the able lawyer nor the technical expert was within the reasonable reach of the employee.

A common outcome was the undertaking of the case by some lawyer for a contingent fee, based in amount upon the size of the award for damages if any was obtained, and this frequently was as much as one half the award.

EMPLOYERS' LIABILITY ACTS

Scope of Acts of Relief. In the course of time it became apparent that Statute Law ought to be enacted to give better protection to the employee. The relief sought through statutory enactments has been provided in part under the name of Employers' Liability Act, although in some cases more general laws have effected the same purpose. Some of these laws flatly deny to the employer the defense of common employment; others, to the same effect, declare the liability of the employer to an employee to be the same as to a stranger. In some States this rule applies under all circumstances; in others under specified conditions only, such as a defect in plant, the act of a superintendent or of any other to whose orders the employee must conform, or obedience to regulations from the employer. Some statutes specify the liability of the employer for acts of "superior servants" and exempt him for acts of "servants of the same grade" or of "servants in the same department."

Provisions of Employers' Liability Act. The Employers' Liability Act of one of the States, has held the employer liable for:

"Defect in condition of way, works, plant, or machinery, caused, undiscovered or unremedied by the negligence of the employer, or some person intrusted with such duty.

"Negligence of fellow-servant exercising some superintendence in the case.

"Negligence of some one to whom the injured servant was bound to and did conform, with resulting injury.

"An injury due to rules or by-laws for which employer had responsibility. "Negligence of fellow-servant in charge of any switches, signals, locomotives, or trains on a railway."

This law while marking an advance, nevertheless has failed to reach several of the difficulties. Under it the employee still assumes something of the risk of hazardous employment; if he cares to, he may by contract waive his rights (and may be required to before employment is secured). The act does not help matters unless the co-employee at fault exercised some functions of superintendence or special defined responsibility, and the employee still must show absence of contributory negligence on his part (in many States). Moreover, he generally has to give to his lawyer one half or more of any sum awarded, and is likely to have opposed to him the best skill and all the resources that the large insurance company possesses, including the employment of competent and expensive engineering and medical experts. The opportunity for expensive litigation is not diminished by this act; in interpreting its provisions, it is perhaps rather increased.

Defects of Act. The statutes of each State must be read to find the provisions of any employers' liability act or similar statutory provision. These acts failed to reach many of the difficulties requiring a remedy. The necessity for bringing a suit at law, securing the services of technical experts, paying the lawyer's contingent fee, together with the difficulty of fixing the responsibility of the employer, and in some States, the omission of any scale of amounts recoverable, still left the remedy very unsatisfactory to the employee; moreover, the difficulty as to contributory negligence was in most States not done away with. The recognition of these defects and of the almost hopeless burden which they imposed upon injured employees led to the passage of Workmen's Compensation Acts.

'WORKMEN'S COMPENSATION ACTS

Common Provisions of Act. In a large number of States, what are called "Workmen's Compensation Acts" represent the latest form of legislation which bids fair to extend to all the States. In 1917 as many as 33 States had passed such acts.

The law in Massachusetts, and in substantial accord in other States, provides for compensation to a workman for

"personal injury arising out of and in the course of his employments"

specifying, however, that:

"If the employee is injured by reason of his serious and wilful misconduct, he shall not receive compensation."

Under this law as first passed and still in force in 1917 the employer may become a "subscriber " by joining a Coöperative Employees' Insurance Association authorized by the act or by taking out insurance in an authorized private company. If the employer fails to become such "subscriber" the act provides that:

"it shall not be a defence:

(1) That the employee was negligent.

(2) That the injury was caused by the negligence of a fellow employee.

(3) That the employee had assumed the risk of the injury."

The act further provides that the employee shall come under the provisions of the act unless he promptly after employment states his choice and desire to depend upon his Common Law remedy.

Scale of Payment. The act further provides a scale of payment for various injuries, and for beneficiaries differing somewhat from those recognized by previous provisions of the law; for the appointment of an Industrial Accident Board to investigate injuries and apportion compensation without resort to a court, and with power to fix fees for attorneys and physicians. A further provision in Massachusetts is for an association of employers of ample size and financial responsibility to take the place of privately managed insurance associations if the employer elects to join such association of employers. There are provisions in other States by which some form of self-insurance is provided for employers.

Acceptability to Employers. While the total amount paid for accidents under such a statute may be larger than had previously been the case, many employers are found to feel reconciled, or even content, in view of the fact that the workman receives practically all that is paid out; while, in view of the employer's saving in lawyer's and expert's fees and in court costs, the outgo on the whole may prove to be not much greater than formerly.

In Massachusetts, farm laborers and domestic servants are not included in the operation of the act. In some other States its action is restricted to employers who have five or more employees or some similar small number. The omission of farm employees was well calculated to facilitate the passage of an act of this character.

The statute for any State in question should be carefully examined, and from year to year amendments should be noted as they are frequent in so important a statute, rather new in character and scope.

INDEPENDENT CONTRACTOR

Definition. It is not true that all persons under employment are servants. Where one person contracts to do a specific piece of work for another, he does it very often as an "independent contractor." The