614
THE GREEN BAG
accidents to his men, as of accidents to his tion of wants rather than equality in free dom of action as the standard of justice; plant and machinery, and that contribu and the decisions which Professor Gray tory negligence — where there is no willful justly stigmatizes as "snobbish"1 are but self-injury and no fraud — is one of these ordinary risks. As the President put it crude attempts to apply this standard be fore it has been recognized clearly or has recently in his address at the Georgia Day taken definite shape. Probably nowhere celebration at the Jamestown Exposition: is the individualism of the common law "It is neither just, expedient, nor humane; expressed more characteristically than in it is revolting to judgment and sentiment the doctrines as to contributory negligence. alike that the financial burden of accidents Recent legislation with respect to employer's occurring because of the necessary exigen cies of their daily occupation should be liability is almost wiping out those doc trines. It seems to be felt that nothing thrust upon those sufferers who are least short of fraud, or disregard of life or limb able to bear it. . . . When the employer . . . so gross as to amount to fraud, should starts in motion agencies which create preclude recovery. No less characteristic risks for others, he should take all the is the view which the common law takes ordinary and extraordinary' risks involved." of industrial accidents. It insists that Juries have perceived this dimly for years such accidents must be due either to wholly and have rendered verdicts accordingly. Legislation is now fast introducing rules unpreventible conditions or to the negli gence of some person. Either the employer, founded avowedly upon this theory. If it holds, was negligent or the employee. this legislation is constructed and applied That the business itself, and not the neg by men thoroughly imbued with the com ligence of some person operating therein, mon-law doctrine and with common -law may be responsible for the accident, is a prejudices, the divergence between legal situation which it cannot conceive of and rules and popular thought, if it does not for which it makes no provision beyond produce legislation still more radical, will laying down that the employee assumes add to existing disrespect for the law. But the incidental risks. But it is coming to be we must note here once more that higher well understood by all who have studied regard for .the person and regard for equality the circumstances of modern industrial in the satisfaction of wants are the con employment that the supposed contributory trolling elements in the newer doctrine. Another noteworthy sign of the shifting negligence of employees is in effect a result of the mechanical conditions imposed on from the standard of so-called legal justice them by the nature of their employment, to that of social justice is to be seen in the and that by reason of these conditions the tendency of modern legislation to reintro duce status or something very like it. individual vigilance and responsibility con templated by the common law are impossible The conception that rights should belong in practice. Hence, while the common law or duties attach to a person of full age and insists upon the workman taking the ordinary natural capacity because of the position he risks of his occupation, requires him to show occupies in'society or of the occupation in negligence on the part of his employer as which he is engaged, is repugnant to the a prerequisite of recovery, and holds him to spirit of the common law. Hence courts, account rigidly for negligence of his own imbued strongly with common-law notions contributing to the accident, the public of this matter, have tended to hold statutes has been coming more and more to think which carry out this idea unconstitutional that the employer should take the risk of whenever possible. But the conception 1 Restraints on the Alienation of Property, xi. is perfectly reconcilable with, and indeed is
