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grew up in different surroundings when people travelled in stage-coaches, and read law by candle-light.

"La grande industrie '' was not born, and its dangers were not and could not be provided for. It is a gentlemanly and dignified old law with a great deal about seigneurs and vassals, about domestic servants and horses, and about the blacksmith or the carpenter whose services may be called in, but very little about the large workshop, and, of necessity, nothing about the dynamo or the locomotive.

Before the days of steam, and electricity, and dynamite, and lyddite, the workman could, as a general rule, protect himself by the exercise of ordinary care. His tools were few and simple. None of them moved except when he handled them, and no one was in a hurry. It is, therefore, not to be wondered at that the law gave him no claim for damages unless some fault, at least of omission, could be clearly brought down to the employer. Under modern conditions millions of workmen pass their lives in continual danger. They have to deal at close quarters with complicated machines, to handle terrible explosives, to run the risk of coming in contact with "live wires" and, in a word, to face a thousand perils. Even the strictest care cannot always save them. A boiler may burst or some other accident occur, the precise cause of which can never be discovered. Hundreds of lives have been lost by this terrible accident anonyme, "" as it has been well called: In many kinds of employment the workman knows that he is exposed to mysterious and sudden danger.

He has to take the risk. It is inherent in the nature of the occupation. The master may have the best and newest plant. He may spare no expense and no vigilance in adopting every means for protecting his men. The workman may be

always on the watch.

But all this cannot prevent the accident. Is it fair that the workman should bear this "risque professionel?" His employer may not be negligent, but at any rate, the work is being carried on for his profit. It is idle to say that the workman is paid at a higher rate, because his work is dangerous. The iron law of supply and demand compels him to take such wages as he can get in the state of the market.

Accident Anonyme.

Now, first, what was the legal position of the workman injured in an accident anonyme before the new legislation By the common law of England it was quite settled that the workman who could not prove negligence on the part of the employer had no claim. A servant takes the ordinary risks of the employment. Cockburn, C.J., put it thus in a leading case: "Morally speaking those who employ men on dangerous work without doing all in their power to obviate the danger, are highly reprehensible, as I certainly think the company were in the present instance. The workman who depends on his employment for the bread of himself and his family is thus tempted to incur risks to which, as a matter of humanity, he ought not to be exposed. But, looking at the matter in a legal point of view, if a man, for the sake of the employment, takes it or continues in it with a knowledge of its risks, he must trust to himself to keep clear of injury," (Woodley v. Metrop. District Railway, 1877, L. R. 2 Ex. D. at p. 389; and see Thomas v. Quartermaine, 1887, L. R. (18 Q.B.D.) at p. 697.

The same doctrine has lately been again affirmed in France by the Cour de Cassation. An engineer on a steamer was killed by the explosion of a boiler.

Examination by experts failed to discover any fault in the construction of the boiler. The precise cause

of the accident remained a mystery. It was held there was no liability. (Cass. 28 fév. 1897, S. 1898, 1-65.) This was, of course, before the passing of the new law.

This also seems to be the law of this Province. In several cases it has been held by the Supreme Court, that where the actual cause of the accident is purely a matter of speculation the employer is not liable. (Montreal Rolling Mills Co. v. Corcoran 1897, 26 S. C. R. 595; Canada Paint Co., v. Trainor, 1898, 28 S. C. R. 352; Dominion Cartridge Co. v. Cairns, ib, 361; Canadian Coloured Cotton Mills Co. v. Kervin, 1899, 29 S. C. R. 478.) But some judges continue to take a less strict view, and to presume the existence of fault. But, surely, if the owner's liability is legally based on fault, and fault only, it seems difficult to say that the general rule actori incumbit probatio can be relaxed. If a plaintiff who sues on a contract must prove his case, one who bases his claim on the fault of the defendant must convince the Court that the facts point to the existence of some fault. Now, if this be good law, it is important to have some idea of the proportion of accidents which are anonymes" and in which damages if the rule is strictly applied, cannot be recovered.

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Before the system of compulsory insurance, which is now in force in Germany, was introduced, the government caused careful statistics for one year to be compiled.

The Reichsversicherungsamt published these figures for 1887. Out of 15,970 serious accidents, involving incapacity for work for at least three months, there

were:

3156 due to fault of employer...... or 19 p. c.

6931. due to risks which were in-
cident to the employment

and in fact, unavoidable... or 43

554 due to unknown cause......... or

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If these figures represent at all fairly the proportions in other countries, and I see no reason why there should be any difference they show that under the old rules of law the employer is only liable in about one-fourth of all the cases of serious injury.

Calculations made in Belgium confirm them.

M. Harzé estimates there, that out of a hundred accidents to workmen, seventy give no claim to legal reparation, if the law requiring actual fault is strictly applied. (see Stocquart, "Contrat de Travail," p. 101). In Switzerland it was reckoned that only from 12 to 20 per cent. of accidents were due to fault of the employer. I do not doubt that, as the law is administered in this Province, the master is here held responsible in very many of the cases classed in Germany as unavoidable accidents. This result is reached by allowing "fault" to be presumed from circumstances. As judges differ widely with regard to their liberality in admitting such presumptions, an element of uncertainty is thus introduced.

Defect in Machinery or Appliances

There is, however, a large class of cases in which either direct evidence or "weighty, precise and consistent presumptions arising from the facts "--to employ the language used in the Supreme Court of

Canada, in" Montreal Rolling MillsCo. v. Corcoran " -enable the precise cause of the accident to be determined. Supposing, as often happens, that the accident is proved to be due to a defect in the machinery used. Is this in itself enough to make the employer. liable? There are many cases in which his liability may be clear. His machinery may be shown to be of an antiquated and dangerous type, or the particular machine, originally good, may have been worn out, or it has been allowed to be used without reasonable inspection from time to time, and repairs, obviously needed, have not been made. Now, in cases of this kind, there has of late years been a proncunced ten- dency on the part of judges in England to hold employers liable in circumstances in which they would formerly have escaped. Even the anguage of Cockburn, C. J., which I quoted from the wellknown case of "Woodley," would hardly be used now without some qualification. What that learned judge spoke of rather as a moral duty than one which the law would enforce, viz: to do all that can be done in reason to protect the safety of workmen, has now come to be looked upon as an implied term of the contract. A master whose boilers are worn out will not be heard to say that the workman took the risk as part of the terms of his engagement. It may still be good English law (apart from the new Statute) to say that the workman takes the ordinary risks of the employment. But by "ordinary risks " judges now understand such risks as are practically inevitable, such risks as even a vigilant and prudent employer cannot prevent. A very recent case in the English Court of Appeal is a good illustration of this change of judicial attitude. A tramway entered an engineering workshop, but was elevated eleven feet above the ground. The workmen in the course of their