the doctrine colenti non fit injuria is a general principle applicable whether the relation of master and servant exists or not. Thomas v. Quartermaine. (L. R. 18 Q. B. Div. 685, 56 L. J. Q. B. N. S. 340.

See Labatt, sec. 370, note.)

This doctrine of volenti non fit injuria was thought not to be a hardship on the servant in the same sense as were the fellow-servant doctrine and the assumed-risk doctrine, as it was common to the whole law of negligence and would be a good defense to a stranger's action against the master for damages for injuries resulting from negligence.

CONTRIBUTORY NEGLIGENCE.

The doctrine of contributory negligence was another defense against claims for damages for injuries resulting from negligence and, in very many instances, defeated a workman's claim against his employer. It is sometimes stated thus: "A plaintiff can not recover damages if but for his own negligence the accident would not have happened, though there was negligence on the part of the defendant.” This was also recognized by Lord Abinger in Priestly . Fowler (supra), and applied to a master and servant case, when he laid down that "the relation of master and servant can not imply an obligation on the part of the master to take more care of the servant than he may be reasonably expected to do of himself," thereby recognizing that the servant's right to recovery for an accident was conditioned on his showing that he did not contribute to his own injury. (See Labatt, section 313.) This defense, however, was available against the claim of a stranger as well as against the claim of a workman upon his employer. It was based upon the idea that if the plaintiff was negligent his negligence and not that of the defendant was the real or proximate cause of the injury. (Thomas . Quartermaine, supra.)

This doctrine was never accepted as sound in the Admiralty courts, where if both parties were negligent the loss was divided.

EFFECT OF DEATH UPON PERSONAL ACTIONS.

Another defense that operated to defeat a workman's claim was the rule of the common law that every personal action dies with the person entitled to bring it, or on the death of the person against whom it can be brought (actio personalis moritur cum persona). This rule of the common law, which relieved an employer from responsibility for all injuries causing death, was, however, abrogated by parliamentary enactment in 1846, under the statute commonly called "Lord Campbell's Act." Until that act the representatives of a workman killed by accident had no redress whatever against his employer.

BURDEN OF PROOF ON PLAINTIFF.

A final stumbling block to recovery by an injured workman lay in the fact that at common law in an action for damages for injuries resulting from negligence the burden of proof lies upon the plaintiff. He has to show (1) negligence, namely, a duty and a breach of that duty; and (2) injury, as a consequence of that breach. In many cases, therefore, even where a workman had a legal right of recovery, he got nothing, as he was unable to prove his case.

ATTEMPTED LEGISLATION, 1875 TO 1879.

An examination of attempted legislation and legislative enactments shows that bills were introduced in 1875 and 1876 to abolish entirely the doctrine of common employment and the defense of assumed risk. These bills were doubtless introduced because the principles so laid down were being pressed more and more severely against the workmen until the restrictions which were conceivably equitable in the case of the smaller industries of former years were made to apply in the case of more recent and indefinitely extended undertakings. Thus the doctrine of common employment was applied to the slight relationship existing between a miner and the engineer of the mine and between the general manager of a railway and a trackman in the service of the same company, resulting in the master in a large undertaking escaping responsibility by delegating authority. These bills were withdrawn, however, on the understanding that Lord Beaconsfield, who was the prime minister, should cause an inquiry to be made into the subject by a select committee of Parliament.

This committee was duly appointed, and in 1877 submitted a report:

This report recommended that where a master delegates his duty of selecting proper servants, material, and plant wholly to agents, instead of performing them himself, such persons to whom those duties are delegated should be held to be the "alter ego" of the master and not to be fellow-servants of the injured servant.

During the proceedings of the committee, before the adoption of the report, it had been proposed that the committee recommend that the defense of common employment should be abolished in the case of accident through the negligence of any employee exercising authority, however low in the scale he might be, so long as he was not employed in actual manual labor. This recommendation, however, was rejected in favor of the report above given.

About the same time a report from the Royal Commission on Accidents on Railways was brought in, to the effect that the master should

be made liable for damages for injuries resulting from the negligence of those to whom the master's authority had been delegated on railways.

The following year, 1878, one of the bills to totally abolish the doctrine of common employment was reintroduced. It, however, was "talked out" and then dropped. The attorney-general, however, promised to bring up a bill later. It was then contended that there was no difference between railways and other industries.

In 1879 three bills were introduced, none of which passed. Of these, one proposed to abolish the doctrine of common employment and the other two to modify that doctrine. One of the latter was introduced by the Government and was limited in its operation to "railways, mines, factories, and works." It made the employer liable for damages for injuries resulting from the negligence of servants with "managerial" authority; it failed to pass, as there was a dissolution of the Government before it had left committee.

EMPLOYERS' LIABILITY ACT OF 1880.

In the following year, 1880, a bill was introduced by Mr. Gladstone's government, which was finally enacted into law and became known as the Employers' Liability Act of 1880. At the general election, following the dissolution of Lord Beaconsfield's government, the abolition of the doctrine of common employment became an election cry. Therefore, at the entry of the next government Mr. Gladstone said: "The present law is unsatisfactory and further protection to workmen is necessary," and immediately reintroduced the bill introduced by Lord Brassey in 1879. Mr. Dobson, whose name was on the back of the bill, showed, in his statement, that "the common law had ended in giving the workmen no compensation at all unless he could trace the accident to personal negligence on the part of his employer." He stated that the bill reverted to the ancient state of the law and would take a middle course, making the employer liable for injuries resulting from the negligence of those to whom he deputed his duties, or from defects in the plant due to negligence of his deputies.

Many amendments, which become interesting from their frequent reappearances in later Parliaments, were introduced. One provided for a general system of insurance, and though this amendment was negatived the Government said that while they did not deem compulsory insurance practicable, they would consider proposals thereto. Another amendment, which was negatived, allowed a workman to recover, if injured by a fellow-servant "in a separate department." An amendment to extend the benefits of the bill to Her Majesty's arsenals and dock yards was negatived on the ground

that they now had greater benefits, although it was said that the Government employees would ultimately be treated the same as others. It was claimed by the opponents of the bill that if passed it would result in the ruin of industries. Mr. Chamberlain strenuously denied this in debate.

When the bill became a law it was restricted to a limit of seven years, but it was subsequently extended, year by year, until the passage of the Workmen's Compensation Act of 1897, and is still in force. It, however, imposed a limit upon the amount of damages (previously unlimited at common law) that could be recovered for an accident, namely, "three years' wages of the injured person, or of a person in the same grade, in the same district." This limitation has operated as a hardship upon injured children, since their earnings were usually only a few shillings weekly.

The act being a compromise was imperfectly drawn, and resulted "in a large crop of litigation."

While in introducing the bill the Government had intended to bring back the law to what it was supposed to be in England before the case of Priestly . Fowler, and in Scotland, up to the decision in the Bartonshall Coal Company . Reed (3 McQ., H. L. Cas. 266), the result of the act was to prima facie entitle the workman to recovery for injuries resulting from the negligent performance of master's duties and powers delegated to superintendents and to other persons. It therefore only obliterated the doctrine of common employment, as far as the five causes of injury to a workman mentioned in section 1 of the act were concerned. That doctrine, therefore, remained in force as to accidents from other causes than those mentioned in section 1 of the act, but placed the workman in the same position as if he had been a stranger to his employer, so far as the five causes mentioned in that section were concerned. The five causes mentioned were as follows:

(1) Defective ways, works, machinery, and plant (if due to the negligence of the employer or of the person to whom had been delegated his duty thereabout).

(2) Negligence of a superintendent (if superintendence was his principal duty and he was not ordinarily engaged in manual labor). (3) Negligence of persons to whom the employer had delegated his power of giving orders.

(4) Acts or omissions in obedience to rules or by-laws or in obedience to instructions of persons authorized by employers to give them.

(5) In the case of railway companies, the negligent management of trains, points, and signals.

The act was also at first thought to have taken away the defense of volenti non fit injuria (see Weblin v. Ballard, 17 Q. B. D. 125); how

ever, the later leading case of Thomas 2. Quartermaine, supra, showed that this defense still survived, although the subsequent case of Smith r. Baker (60 L. J. Q. B. 683), in the House of Lords, minimizes its application.

CONTRACTING OUT.

After the passage of the Employers' Liability Act of 1880, it was found that employers were, by special contracts with their men, freeing themselves from the liability imposed by that act, and the case of Griffiths. Earl Dudley (9 Q. B. D. 357) decided that such contracts were "not contrary to public policy." Therefore, in 1881, a bill was introduced to prevent an employer from contracting himself out of the act. The bill failed, and in the following years, 1882 and 1883, similar bills again failed. It was stated that "it was inexpedient to interfere with freedom of contract and with private schemes that made provision for every accident, whether under the Employ-" ers' Liability Act, or not." In 1886 a similar bill contained a further clause that the definition of a person intrusted with superintendence was not thereafter to be limited to "one who is not ordinarily engaged in manual labor, and whose principal duty is that of superintendence." The bill was dropped on the appointment of a select committee to inquire into the workings of the act of 1880.

The committee's recommendations were as follows:

(1) The repeal of the "limiting definition" of a superintendent. (2) That no contracting out should be allowed, unless for adequate consideration (namely, a contribution to insurance approved by outside authority and guaranteed against deficiency by the employer).

In 1887-88 a bill was introduced by a labor member practically abrogating the doctrine of common employment, and while not affecting existing "contracts out," providing that in future there should be none, but that the "court in any suit" should "reduce the damage if it was found the plaintiff had received benefits from insurance funds. The bill was dropped on the Government itself introducing a bill on the lines of the select committee's recommendations. That bill was emasculated in committee, and thereafter dropped on opposition by labor members, who insisted on abolishing the defense of common employment and contracting out.

In 1890 another bill was introduced by a labor member abolishing common employment as a defense, and repealing the act of 1880. But the Government again reintroduced its bill, allowing contracting out only when a written request was made by a workman," and even then allowing the court in any subsequent suit to pass on the question of the adequacy of consideration received by him for so doing, and to see that it was a substantial one, other than "continuance in service."