3. Is a bookkeeper privileged from testifying as to confidential information?

4. What is the law as to inventions made by an employee, where no provision has been made in the contract?

5. What are the obligations of the employer? If he fails, what is the consequence?

6. What circumstances would justify discharge and forfeiture of wages due?

7. May employees be fined for coming late?

CHAPTER XLII

EMPLOYER'S RESPONSIBILITY

§ 275. Introductory

Under the common law, the employer's responsibility for injuries to his employees was reduced to a minimum.

I. "The rule as to the assumption of risk" held that if the defects of equipment were such that the employee could see them, he assumed all the risk by taking employment. As a man who needed work was not in a position to reject it because equipment was unsafe, the doctrine prevented a multitude of injured workmen from receiving damages. (See § 276.)

2. "The rule as to contributory negligence" relieved the employer from any responsibility if the workman had himself been in any way careless. Many a crippled worker was defeated in the courts by reason of this rule. (See § 277.)

3. "The rule as to fellow-servants" was a particularly unjust regulation. If the carelessness or negligence of a fellow workman caused the injury, the hurt man had no compensation. He did not hire the men with whom he worked, but the law held that if he chose to work with them, and they were careless or incompetent, the employer who had hired them was relieved of all responsibility. (See § 278.)

The injustice of these rules and the disadvantage to the injured workman when he tried to enforce his rights in the courts, have led to the passage of many laws designed to remedy the conditions. There are two classes of these laws:

1. The employers' liability laws, which aim to define the

I.

employers' liability and to modify or remove the objectionable common law rules.

2. The workmen's compensation laws, which try to systematize the responsibility for injury and to provide something in the nature of insurance for the wounded and bereaved in the fields of industry.

These laws proceed on the theory that if a workman is injured from any cause, there is a loss that someone must stand. In such a case, it seems that the particular industry should care for those who were injured in it, and that the care for the injured should be made part of the expenses of the business, so that careless and conscienceless employers would not be allowed to shirk responsibility.

§ 276. Doctrine of Assumption of Risk

This rule of law still holds in many states where there is no workmen's compensation act, or where the workmen's compensation act does not cover all kinds of employment.

The doctrine holds that if there are dangers in the business which are sufficiently obvious for the employee to notice and recognize, he assumes the risk of accidents which may arise from them, and the employer is not liable for his injuries. The same would be true if the workman afterwards discovered dangers and remained in the employment without the employer's promising to remedy them.

If the employer assures an employee that his work involves no danger, the latter cannot be held to have assumed the risk. For instance, in Wurtemberger v. Metropolitan St. R. Co., a foreman laughed at a workman when he told him that a jack was unsafe, and said to the rest, "Here is a greenhorn, and he thinks that jack is unsafe." Wurtemberger was held to have a right to damages for the injury subsequently received. (See also §§ 279, 280.)

168 Kansas 642.

1

§ 277. Doctrine of Contributory Negligence

This rule holds that if the carelessness of the injured employee in any way contributed to the accident which caused the injury, the employer will not be held responsible.

It makes no difference that the carelessness of the employee was unintentional or the result of a mistake. For instance, in one case, an employee thought he was walking on a side track instead of the main track and continued walking along it until a train struck him. He was not permitted to recover damages.

In another case, a brakeman named Quirouet left the brakes set on a freight car. Then, instead of waiting for the caboose which had steps on it, he tried to climb up and turn off the brakes so as to prevent the wheels from bursting and wrecking the train. He was injured while attempting to climb up in this way, and was not permitted to recover damages.3

Some states now have a doctrine of comparative negligence. Sometimes the accident was primarily due to the carelessness of the employer or to his neglect to perform the duties which he owed to the employee, but the employee's own carelessness had something to do with it. In this case the jury must determine what damages are due the employee for the injury, and then decide what relation his carelessness bore to the employer's carelessness or neglect of duty, and award him a proportionate amount of the damages. (See also §§ 279, 280.)

$278. The Fellow-Servant Rule

The fellow-servant rule means that the employee cannot hold his employer for damages if the injury was due to the act of a fellow-servant or a fellow employee. This rule, with

2 Vreeland v. Chicago, etc., R. Co., 92 Iowa 279; 60 N. W. 542. Quirouet v. Ala. Great Southern R. Co., 111 Ga. 315; 36 S. E. 599.

the doctrines of assumption of risk and contributory negligence, is rapidly being done away with.

In some states the harshness of the old law has been mitigated by the so-called superior servant rule. That is, if the fellow-employee was a superintendent or someone in a position of authority, he is not regarded as a fellow-servant and the employer is responsible for his carelessness. In some states, only an employee who has the power to hire and discharge is regarded as being a superior servant; while in others, any position of authority which gives him the power to control the actions of the men is sufficient to insure his status under the superior servant rule. (See also §§ 279, 280.)

§ 279. Employers' Liability Acts

Employers' liability acts have been passed to define and increase the liability of the employer for injuries. Most of them do away with, or at least modify, some of the old rules excusing the employer from liability. The doctrine of the assumption of risk has generally been greatly modified, and the duties of the employer to guard against accident have been increased. In New York, for instance, the employee assumes only such risks as may still remain after the employer has taken care to discover and remedy all defects, and has complied with all laws requiring safety devices.

It is under these acts that the doctrine of comparative negligence has been introduced.

Differences in Liability Acts. In order to know just what the effect on the old rules is, it is necessary to consult the particular liability act of each state, as the acts differ somewhat. Some of the acts apply only to special classes of workmen, such as miners; while others exclude certain classes, such as farm laborers. For information in regard to this also, it will be necessary to consult the particular act in question.