CO UR TS A ND FA CTOR Y LEG I SLA TION 405
a personal opinion, it is that the English rule, in cases where no violation of statute is involved, is fairer, leaving it for the jury to say, from the facts in evidence in a given case, whether the work- man who continues to use machinery he knows to be defective should be held to have assumed the risk of injury. It has the merit of flexibility, and is more calculated to meet the requirements of substantial justice in the varying facts of different cases.
As to the violation of regulative statutes framed to secure the safety of the employe, the situation would seem to be simpler. If the conditions of an employment are such as to make such legislation necessary to preserve the lives of employes, such resulting legislation should be supported by the courts instead of being nullified and rendered absurd. A more curious example of the legislative and judicial branches of government playing at cross purposes is scarcely to be found than exists under the current New York rule. It is calculated to bring law into contempt, not only among the working people (whose atti- tude at best toward the judiciary leaves something to be desired), but also among the manufacturers and great employers. Dead- letter statutes of this kind are a luxury which cannot be well afforded in a country whose ultimate source of authority is law.
The attitude of the courts toward factory legislation is of importance to others besides the injured litigant. While it has been said on good authority that the courts in the great manu- facturing states are desirous of diminishing the constantly increasing flood of negligence litigation by discouraging the injured servant from taking his troubles to court, 1 the public, and
1 The preface of the latest edition (1898) of SHEARMAN AND REDFIELD On Negli- gence, a leading authority among the text-books on this subject, contains the follow- ing :
"The stubborn resistance of business corporations, common carriers, and mill- owners to the enforcement of the most moderate laws for the protection of human beings from injury, and their utter failure to provide such protection of their own accord, ought to satisfy any impartial judge that true justice demands a constant expansion of the law in the direction of increased responsibility for negligence, instead of attempts, unfortunately too common, to restrict such responsibility by introducing new exceptions.
"The law of master and servant in its relation to the law of negligence affords perhaps the most striking example in the last half-century of gross injustice done by this disposition to restrict responsibility and suppress litigation." (P. vi.)
