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Page:Harvard Law Review Volume 2.djvu/240

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same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of, the employer, nor engaged in his work."

To recover, however, it must appear that the defect in (i) arose from the negligence of the employer, or of some one intrusted by him with the duty of keeping the works in proper condition. If the workman knew of the defect, and failed to give notice within a reasonable time, his remedy is barred. The sum receivable as compensation is limited to the amount of estimated earnings, during three years preceding the injury, of a person in the same grade as the injured employee. Notice of injury must be given within one week, and action begun within six months, of the occurrence of the accident, or, in case of death, within twelve months.

Any penalty paid under act of Parliament to a workman shall be deducted from the compensation which that workman may receive for the same cause of action under the provisions of this act. "A person who has superintendence intrusted to him " is defined as " a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labor." The ex- pression "workman ** means a railway servant, and any person to whom the Employers and Workmen Act of 1875 applies, i,e,, laborers, servants in husbandry, journeymen, artificers, handicrafts- men, mechanics, miners, and in general any one engaged in manual labor.^

In theory the act was far-reaching in its purport. In practice it has fallen far short of accomplishing the results expected of it. This is largely due to the omission of any provision prohibiting contracts in contravention of the act. Taking advantage of this fact, many railway and mining companies, private corporations, and individuals, with more or less persuasion compelled their employees to sign contracts of hire releasing them from liability for damage under the act. The question of the validity of such contracts came up in the case of Griffiths v. Earl of Dudley, 9 Q. B. D. 357, which held, not only that an employee may contract himself out of the protection of the act, but that such a contract will bar the right of his widow to sue in case the injury results in

^ This does not include an omnibns conductor (Morgan v, London General Omnibm Company, 13 Q. B. D. 832), nor the driver of a tram-car (Cook v. North Metropolitan Tramways Company, 18 Q. B. D. 683).