servant operate as a defense where it is followed by willful or wanton negligence on the part of the master. Where injuries result in death, the right of the personal representative to sue, which does not exist under the common law, but is now given by statute in most States, is subject to the same limitations as would have been the right of the injured person if he had survived.

What negligence bars recovery.

What does and what does not constitute such negligence as to be a bar to an employee's claim for damages have not been consistently ruled upon by the courts. The test varies according to circumstances, the rule being that the servant must conduct himself as a prudent person would in a like position.

A servant engaging in work for which he is not qualified by previous experience, and incurring injury, is held to have been negligent. In some jurisdictions the master has not been made responsible even though he knew when he hired the employee that his inexperience made the labor abnormally hazardous, but such views are not generally accepted.

So also if the precautions appropriate to dangerous situations are omitted, or if an unnecessarily dangerous method of doing work is chosen where the employee has the power of choice, or if he assumes or remains in a position of unnecessary danger, he will be held to be guilty of contributing to his own injury. Inattention to surroundings, and going in the line of duty into a place of unusual danger without notifying those from whose reasonably anticipated acts harm might befall him, have the same effect. The fact that the presence of an employee in the place where the injury was received. was not required for the performance of his duties will prevent recovery. Using an appliance for a purpose other than that for which it was intended, if suggestive of danger to a person of reasonable intelligence in the situation of the workman, will usually be a bar to successful action. The use of defective or otherwise unsuitable instrumentalities may be negligent, though if a showing of due care in the circumstances is made, and the danger was not great and obvious, an action for damages may be maintained.

Violation of orders or of specific valid rules of which the employee has notice, and the neglect of warnings with reference to any of the acts named above will usually be held to imply negligence as a matter of law. (a) In Texas (') and New York, (c) however, the violation

a Coops v. Lake Shore & M. S. R. Co. (1887), 66 Mich. 488, 33 N. W. 541; Louisville & N. R. Co. v. Woods (1895), 105 Ala. 561, 17 So. 41.

Ft. Worth & D. C. R. Co. v. Thompson (1893), 2 Tex. Civ. App. 170, 21 S. W. 137.

Gross Pennsylvania, P. & B. R. Cc. (1891), 42 N. Y. S. R. 808, 16 N. Y. Supp. 616.

BULLETIN OF THE BUREAU OF LABOR.

NECESSITY, ETC.-Apparent necessity may justify an otherwise negligent action, unless obviously rash. (4) A master whose rules or customary practice prescribe a certain mode of performing work is in some degree estopped from bringing in the defense of contributory negligence where an employee has been injured while conforming to such rule or custom, though to what extent has not been accurately determined. If the injured employee incurred his injury on account of conditions leading thereto which were outside of his power to control, this fact will tend to negative the charge of negligence; so also of his reliance on the presumption that tools and appliances are in good condition and that the work in each department will be prudently done. Minority is also frequently a defense to the charge of negligence, either absolute or partial, varying with the age and the mental and physical capacity of the individual. In connection with each of the above qualifications the remark made in a previous statement should be kept in mind, that where the emergency or other dangerous condition is the result of prior negligence of the injured employee, these mitigating or rebutting elements are of no avail against a charge of contributory negligence.

Jow.

Local rules.

In a few States local doctrines have modified to a greater or less degree the customary rule as to contributory negligence and assumption of risks. Thus in Alabama, (2) the fact of an employee's contributory negligence has been held not to be a bar to recovery where the injury was caused by the wanton or reckless conduct of a fellowServant or other employee for whose conduct the employer was reponsible. Georgia () makes contributory negligence a ground for reduction of the amount of damages to which the plaintiff would be otherwise entitled rather than a bar to complete recovery. To what extent this is the result of legislation will receive consideration beThe rule followed in Illinois has already been mentioned (pp. 23, 24). The language of the courts of this State in a number of cases is such that it can not be determined to what extent the doctrine of the assumption of risks is recognized, or rather, perhaps, what distinction is made between assumption of risks and contributory negligence. In Missouri the defense of assumption of risks has been in large measure disallowed. In a very recent case (4) the State doctrine on this subject was designated by a court of that State as unique, in that "the servant assumes only such risks as are ordinarily incia Missouri Furnace Co. r. Abend (1883), 107 Ill. 44, 47 Am. Rep. 425. Louisville & N. R. Co. v. York (1901), 128 Ala. 305, 30 So. 676. Pierce . Atlanta Cotton Mills (1887), 79 Ga. 782, 4 S. E. 381. * Obermeyer v. Chair Co. (1906), 120 Mo. App. 59, 96 S. W. 673.

dent to his employment, after the master has performed his whole duty to provide him a reasonably safe place to work and reasonably safe appliances with which to do this work;" while if the master is negligent in these respects and the servant knows, or by the exercise of ordinary care could have known, of the unsafe place or appliances, and yet continues in the service, he does not thereby assume the risk occasioned by the negligence of the master. Contributory negligence can be charged, however, if the danger was so great and obvious that a prudent man would not work under the circumstances, or if the work could not be done with reasonable safety by the use of caution. (")

The rule in Tennessee appears to be similar to that followed in Georgia, that if the employer's negligence occasioned injury to an employee who was himself negligent in the premises, the employee's negligence goes in mitigation of the damages, but does not excuse the employer. () The wording and interpretation of statutes give rise to other differences, which will be considered under the head of statutory liability.

The remaining defense to an employee's action for damages is what is known as the "fellow-servant" rule, or the doctrine of common employment. According to this, where the employer has discharged his duties as to a safe place, safe and suitable appliances, competenti fellow-servants, etc., he is not liable to an employee for the acts or negligence of any mere fellow-servant or coemployee, provided such coemployee does not represent the employer. Or, as it has been otherwise stated, “A master is not bound to indemnify one servant for injuries caused by the negligence of another servant in the same common employment as himself, unless the negligent servant was the master's representative." If, however, the negligence of a coservant concurs with the negligence of an employer in causing the injury, the injured employee not contributing thereto, the employer will be liable in damages.

The well-known diversity, not to say confusion and contradictoriness of the rulings of the courts as to the application of this rule arises from the lack of precise and generally accepted definitions of the idea of common employment and of representation of the master. The relations of this doctrine to the other elements which determine employer's liability are such that practically all that has been See also Hamilton r. Rich Hill Coal Min. Co. (1892), 108 Mo. 364, 18 S. W. 977.

Nashville & C. R. Co. v. Carroll (1871), 6 Heisk. 347.

30649-Bull. 74-08-3

said with reference to the duties of the employer and the assumption of risks by the employee must be read in the light of the rulings of the jurisdictional courts on the subject, although the principles involved are held to be those of general law. In an opinion on a fellow-servant case which was before the Supreme Court of the United States a few years ago it was said that "there is perhaps no one matter upon which there are more conflicting and irreconcilable decisions in the various courts of the land than the one as to what is the test of common service, such as to relieve the master from liability for the injury of one servant through the negligence of another."(4) Not only do the courts of the various States differ, but in the individual States are found fluctuations of opinion from time to time, and the acceptance of new standards, with departures from former positions, so that it is important to know the date of an adjudication in order to determine the present construction in the State. In the Supreme Court itself we find a decision of 1884 strongly modified in 1893 and practically reversed in 1899. (See pp. 38, 39, below.) The attempt has been made in a number of States to fix by statute the relations of employees to one another, and to determine the liability of the employer for their acts or negligence; and this would appear to be the only practical method of attempting a solution of the problem as it exists to-day. It must be confessed, however, that even where statutes of different States are closely similar if not identical in phraseology, the effect of local interpretations is apparent in the varying constructions adopted.

The common-law rule was enounced in England and America at about the same time, apparently independently, and to practically the same effect. Subsequent developments have been more favorable to the employee in this country than in England, however, some States having apparently lost sight of the foundations of the rule.

The reasons offered by the courts for the rule have been various, one being found in the view that the master's responsibility is at an end when he has used ordinary care to employ competent servants. It is held that the employee assumes the risk of the possible negligence of a coemployee as one of the incidents of the employment.(') In another opinion of our Supreme Court it was said that the obvious reason for exempting the employer from liability is that the employee has or is supposed to have such risks in contemplation when he engages in the service, and his compensation is arranged accordingly, so that he can not in reason complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid. (c) Another reason is found in alleged grounds of public

a Baltimore & O. R. r. Baugh (1893), 149 U. S. 368, 13 Sup. Ct. 914. Hough r. Texas & P. R. Co. (1879), 100 U. S. 213, 25 L. Ed. 612. Chicago, M. & St. P. R. Co. r. Ross (1884), 112 U. S. 377, 5 Sup. Ct. 184.

policy, as tending to make the employees more watchful over their own conduct and that of their fellows, thus benefiting employers, employees, and the public alike by the greater care with which they perform their duties. (a) In close connection herewith is the claim that any marked enlargement of liability to capital would lead to the withdrawal of capital from industrial enterprise, thus reducing the opportunities of employment and inflicting damage upon the whole community. (')

Each of these reasons has been the subject of adverse criticism, and no one of them seems to give a satisfactory ground for excepting employees from the benefits of the doctrine of respondeat superior, or for compelling the employee to bear the burden of "pure accidents" which occur in the prosecution of undertakings the advantages of which are to be reaped by the employer. The last two reasons mentioned above have perhaps been most frequently relied on as supporting the customary rule, though no such results as are therein indicated have followed the adoption of statutes greatly enlarging the rights of employees to recover for injuries following upon industrial accidents.

The chief points requiring determination in any action involving the principles under consideration are those of common employment and of representative capacity. If it appears that the injuries complained of are the result of the negligence of a coemployee, the only hope of the plaintiff lies in showing that the negligent person was a vice-principal, representing the master at the time, and so devolving upon him a liability for the acts or omissions charged.

Common employment.

The first question, then, to be considered is what constitutes common employment. It was said in a leading case that, "prima facie, all who enter into the employ of a single master are engaged in a common service, and are fellow-servants," () but this broad statement will not answer as a conclusive test. Not only employment by a common master, but also engagement in the performance of duties that may reasonably be said to tend to the accomplishment of the same end is necessary to meet general acceptance by the courts; nor is it a sufficient answer to say that all serve the profit or convenience of a common employer. Where another servant than the plaintiff, employed for a purpose entirely different from his duties, has negligently caused the injury complained of, it may well be said that they are not fellowservants. But even with this qualification the statement is not def

Chicago, M. & St. P. R. Co. r. Ross, supra.

New Pittsburg Coal & C. Co. v. Peterson (1893), 136 Ind. 398, 35 N. E. 7. Baltimore & O. R. r. Baugh, supra,