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Page:Harvard Law Review Volume 2.djvu/247

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being fastened to the house in which they were at work. The fellow-servant had charge of lowering one end and the plaintiff the other. The former neglected to fasten his end securely^ whereby the plaintiff was injured. The declaration did not allege any defect in the condition of the stage itself. In sustaining a demurrer to this declaration, the court says, referring to the statute : —

" This so far changes the common law as to give a right of action to a servant who is injured by a defect in the machine, tool, or ap- pliance itself, which is furnished for his use, although such a defect arose from the negligence of a fellow-servant whose duty it was to see that the machine, tool, or appliance was in proper con- dition. But it does not give a right of action against the employer for the negligence of a fellow-servant in handling or using a ma- chine, tool, or appliance which is itself in a proper condition."

This case, curiously enough, the first on the subject, points out that the doctrine of common employment still exists in Massachusetts, as it does in Great Britain and in Alabama. The statute, as has been noted in the case of the English and Alabama acts, simply restricts and limits the application of that doctrine by exempting certain cases from its operation.

Both in Alabama and in Massachusetts the courts will undoubt- edly be influenced by the decisions of the English courts. Unlike Alabama and Great Britain, however, Massachusetts has a law which will prevent private contracts from virtually repealing the statutory provisions. By P. S., chap. 74, §3, it is provided that —

  • ' No person or corporation shall by a special contract with persons in his or

its employ, exempt himself or itself from any liability which he or it might other- wise be under to such persons for inj uries suffered by them in their employment and which result from the employer's own negligence or from the negligence of other persons in his or its employ."

As Massachusetts has long been regarded as the stronghold of the rule of non-liability of employers, holding that servants in command and even vice-principals are fellow-servants within the scope of the doctrine of common employment, the passage of an Employers' Liability Act, even if somewhat limited, will have con- siderable weight in other jurisdictions.^ Indeed, it seems but a

^ For a criticism of the Massachusetts doctrine, see Shemrman and RedBeld on Negli- gence, cited supra. A very recent case, Benson v, Goodwin, 17 N. E. Rep. 517, holding