us that "power over a man's subsistence amounts to a power over his will." This was said of judges, but a fortiori it is true of the workman. It is well understood in the industrial world that there is no place for a workman who is, from the employer's standpoint, captious or hypercritical, or for one who should assume to advise as to the competency of a fellow servant, even in matters especially concerning his own safety. To leave one's employment as a protest would carry with it a stigma; it is one of the heinous offenses. Besides, it means usually a period of idleness for which no provision has been made, with consequent privation and suffering for a family. But out of such supposed facts was evolved the fiction of an implied contract on the part of the plaintiff under which he assumed, among other risks, the risk that a fellow servant might be incompetent or grossly negligent, an implied contract, too, upon a point which was not contemplated by either party! Upon this very frail and insecure foundation was based a decision fraught with momentous consequences. For many decades thousands of workmen, maimed and incapacitated, suffering, without any color of justice, from accidents on railroads and in factories, as well as the surviving widows and orphans 1 Federalist, no. 79. of the slain, were to hear the refrain of this doom which sentenced them often to lives of poverty or dependence. During all this period legislatures, royal commissions, and parliaments were to seek in vain to overcome the baleful effects of this decision. It is much to be lamented that "considerations of public policy and general convenience were not more broadly considered. To the great chief justice it seemed inconvenient that this corporation should suffer on account of the neglect of one of its servants whom it had selected perhaps with care; but, on the other hand, it was certainly inconvenient that this engineer should be incapacitated for life through the fault of an agent over whose selection or retention he had no control and for whose negligence he was not remotely responsible. According to modern conceptions the solution of the problem presented would not have been difficult. Here was an industry comparatively new, with its own hazards. The corporation must replace its engine, wrecked in the same accident, negligence or no negligence; that was one of the risks of the business. Why should it not, for the same reason and out of the same resources, pay for its wrecked engineer? Why should not both losses have been deemed a part of the cost to the public? If the traffic involved such losses, why should not the public pay for them directly? How else, with any regard to the rudimentary principles of justice, could the loss be met? At the time of this decision the world was slowly awakening to the fact of great industrial changes. The Factory Age had come; great inventions and the application of steam to machinery were transforming the industrial world. It was gradually dawning upon the minds of thoughtful men that these great changes had made imperative new standards of law as related to industry. The problem was dimly apprehended, as indicated by the Prussian law referred to as well as by the factory legislation which had engaged the attention of England since the beginning of the century. Possibly the chief justice was one of those who were then patronizingly characterizing the law of Prussia as the benign paternalism of a despotic power. But if Prussia reached a point in social legislation in 1838 which England attained with much difficulty in 1880, and Massachusetts in 1887; if that conception of the obligation of the state to the laboring classes in its gradual but logical development in the German Empire of to-day has challenged the attention and admiration of the civilized world, one ought, to-day at least, to discern in it some thing of the grasp and prescience of true statesmanship. But in connection with the remedies which have been sought to mitigate the commonemployment doctrine the law of contributory negligence must be considered. This has always borne heavily upon the workman. It is very ancient. It has been said that "it has existed from time immemorial and is not likely to be changed in all time to come." 1 The reasoning by which it has been supported savors more of the refinements of medieval logic than of modern modes of thought. Contributory negligence is the slightest want of ordinary care contributing proximately to the injury. If a workman contributes one per cent of the elements which go to make up an accident and the employer ninety-nine per cent, the workman cannot recover. Moreover, if there is no fault, if an accident is simply an incident of the business, le risque professionnel, or attributable to superior force, these risks the laborer is deemed to have assumed. Even, further, if there is gross fault on the part of the employer, if certain precautions have been neglected by him, if stringent provisions of law have been flagrantly violated, yet, if the workman knew of these acts of 1 Black, C. J., Penn. R. R. Co. v. Aspell, 23 Penn. St. 149. carelessness or violations of law, he is presumed to have waived any remedy. He is confronted with the maxim, volenti non fit injuria. So the very severity of treatment in many employments, overwork, excessive hours, working at too great speed, the assenting to labor under circumstances of great danger because required to do so, the necessity of satisfying the importunate demands of overseer or master as bearing upon retention or promotion, the elements, in a word, which make care difficult or impossible,— have all been charged up to the workman; the standard of the court-room is too high for him; he is found to have been wanting in ordinary care and remediless. Under these conditions there was not a strong inducement for the employer to exercise care in the construction of buildings, in the arrangement or adjustment of machinery, in safeguarding the workman. It was cheaper to let him take his chances; to replace the killed and wounded by new recruits; to treat the human material as negligible when compared with the cost of expensive safeguards. Data have been carefully collected from varied and widely distributed industries to indicate the source of accidents and the responsibility for them, showing that nearly one half may be charged to the risque pro |