OUR JUDICIAL OLIGARCHY, (SEVENTH ARTICLE)
Roe, Gilbert E.
OUR JUDICIAL OLIGARCHY SEVENTH ARTICLE:—WHY THE PEOPLE DISTRUST THE COURTS By GILBERT E. ROE ( Copyrighted 1911, The Robert m. La Follette Co.) Is the Poor Man on an Equality With the Rich Man...
...and it is the decisions necessary to fortify and defend that attitude which have, in a large measure, bred a popular distrust of the Courts, the more serious because largely suppressed...
...Even a statute declaring that "the question whether the employee understood and assumed the risk" shall be one of fact, will be disregarded by the Courts if only the danger is obvious enough...
...Needham v. Louisville &c, Ry., 85 Ky., 423...
...8 Bancroft v. Boston & Me...
...But when, after much agitation and extended investigation, plain statutes are passed, correcting the abuses of the old laws, and the people have seen those statutes, again and again, either nullified by the Courts entirely, or so interpreted as to make them fail of their purpose, the period for suspended judgment ended and the public made up its mind...
...Courts Cling to Antiquated Doctrine HAD THE DOCTRINE of Priestley v. Fowler been confined to the facts or situation involved, it would have done little harm and would now be merely one of the curiosities of the law...
...It is inhuman to compel the employee to accept the responsibility for accident in exchange for the opportunity to work...
...He was the first employee or servant who ever had the hardihood to bring an action under the English law to recover damages from his master, on any similar state of facts.2 Mr...
...The inconvenience, not to say the absurdity, of these consequences affords a sufficient argument against the application of this principle to the present case...
...10 Gaffney v. N. Y. etc...
...Crown v. Orr, 140 N. Y., 450...
...Priestley sued Mr...
...Kinsley v. Pratt, 148 N. Y., 372...
...No one knows...
...The occupational diseases that must be assumed by the employee, of which there is really no record, must be considered among the casualties, although they have little hope of compensation...
...This action of the judge was held proper on the appeal...
...The miners claim that four men are killed in America to one in Europe, and it is admitted that mining ordinarily and normally ought to be accompanied with less danger here than abroad...
...Labor is the superior of capital and deserves much higher consideration...
...v. Thomas, 42 Ala., 672...
...Courts Thwart Legislative Remedies THE NEXT great service of the Courts was in nullifying and destroying statutes, state and federal, passed to correct the injustice and barbarities of the old law, as applied to the laboring classes...
...his worthy occupation with some success, for at the time mentioned, his business had prospered to the point where he employed two servants in it, and owned a cart and horse used to peddle meat to his various patrons...
...also article on the Recent Amendment of the Labor Law, Bench & Bar for August, 1910, 22 Bench & Bar, p. 45...
...Does it not appeal to you that there is an underlying cause other than negligence that is responsible for the casualty record...
...The complaint against the Courts at this point is much more fundamental than any matter of procedure, or expense, or delay...
...At the time mentioned, Priestley and his fellow servant, were engaged in driving the cart of Mr...
...So we say advisedly, until sane rules of employment regulate industry, until it costs more to kill a man than to protect him, until the man and the machine are brought closer to the relative endurance of each other, and safety devices are installed that automatically will prevent accidents, we shall have an annual casualty roll that will warrant a repetition of the statement, that the mines are stained with the blood of their victims...
...If the owner of the carriage is therefore responsible for the suffi-ciency of his carriage to his servant, he is responsible for the negligence of his coach maker, or for a defect in the harness arising from the negligence of the harness maker, or for drunkenness, negligence or want of skill in the coachmen...
...So long as the rich litigant can employ better counsel, prepare his case better, and endure more easily the "law's delays" he will always have great advantage over his poorer opponent...
...The result is that to change a gear, shift a belt, adjust a feed, or any one of the thousands of ways that are offered the man to take a chance and keep his machine going without loss of time, are accepted at the price of safety, and he pays the price...
...The charge against the Courts is that their judges habitually think in the terms of the rich and powerful...
...Appalling Results of this "Precedent" THESE PRINCIPLES of law, devised by an English Judge nearly a hundred years ago, in order to protect a master from liability for inquiry to his servant caused by the breaking of the horse cart on which he was riding, as applied by our courts, have saved countless millions of dollars to the employing classes in this country, while they have killed and made paupers of untold thousands of laborers and their wives and children...
...Finnigan v. N. Y. Contracting Co., 194 N. Y., 244...
...44 Pac, 302...
...He writes dispassionately, convincingly—and very interestingly...
...The cart suddenly, and without any warning, broke down, and, we are informed, one of the legs of Mr...
...From the same report I quote again.5 "A system of almost perfect mechanical production has been installed, and the man must keep pace with it...
...P. Ry...
...Yet the fact is, that the Courts have not only held tenaciously to the old dogmas, but have extended the hard rules of law then applicable to the controversies mentioned, so as to make them bear more heavily upon the poorer and weaker classes...
...Coupling cars in motion is a risk brakemen must assume.7 Failure of the railroad to maintain gates or signals at a crossing, although required to do so, is a risk the trainmen must assume, if they might have known of the company's omission.8 Any unsafe and careless custom of the employer, if open to the observation of an employee, in the opinion of a Court who considers the matter after the accident, is a risk the employee must assume.9 Railroad employees must assume the risk of being killed by structures or obstructions maintained dangerously near the track if a Court can say they had notice of the danger.10 Passing frequently on a rapidly moving train, while engaged in his duties, an object dangerously near the track enables the Court to say that the employee had notice of the danger...
...The public knows now that the Courts are against those progressive measures and policies which the majority of the people are for...
...27 Minn., 137...
...Not only this, but when Congress and Legislatures have intervened to abolish the hardships of the old rules of law by humane statutes, the Courts, as we have seen, have constantly thwarted the legislative intent, by invalidating many of such laws and by misinterpreting others...
...While a number of individual judges, particularly some of those on the Federal Bench, have recently been subjected to severe criticism for their decisions, I feel that this is a superficial view...
...49...
...I quote from the case)— "That the plaintiff was the servant of the defendant in his trade as a butcher...
...258, 289...
...It would be hard to imagine a case decided a hundred years ago involving the relative rights and duties of capital and labor, or of employer and employee, which ought to be a precedent or controlling authority upon the same questions today...
...or injured by the foreman's negligence, and the company therefore is not liable.23 So the list might be indefinitely extended, showing how the Courts have built up a body of law to protect the employing classes from liability for injuries to their employees, which a humane and enlightened public sentiment long ago became convinced the employers should bear...
...The general toll of industry is estimated at anywhere from one-half million upward annually, but we are unable to do more than estimate, for outside of railways no reliable statistics are available...
...Is the Poor Man on an Equality With the Rich Man Before the Courts...
...disputes between labor and capital and, what for want of a better term, is usually described as vested interests...
...The name of one of the servants which has been immortalized in the law books was Priestley...
...Is there, in effect, one law for the rich and another for the poor...
...War is safe compared to railroading in this country...
...The employer pays nothing...
...Co., 43 Me., 269...
...In 1837, there lived in one of the rural communities of England, a butcher named Fowler...
...That a man works for another does not mean that he is indifferent to physical and mental pain...
...Under the rule of assumed risk, the Courts say that the section hand injured by collision with a wild engine, of the approach of which he had no warning, cannot recover, for this is one of the risks of the business...
...These principles of law, thus originating, were carried to this country the following year and soon became the law of the land...
...He seems to have followed Message to Congress, Dec...
...The training, sympathies, experiences and general view of life of most judges has made this inevitable...
...This subject, however, we are not discussing, and it is poor service to the cause of Judicial Reform to point out these conditions as constituting real grounds of complaint against the Courts...
...The above sentiment of President Lincoln, undoubtedly expresses the conviction of the American public, today, even better than when it was uttered...
...It is not the occasional decision, contrary to precedent, that works the injustice, but the uniform current of decisions in line with the precedents...
...Gallagher v. Newman, 190 N. Y., 444, 447-8...
...He (the master) is no doubt bound to provide for the safety ' Priestley v. Fowler, 3 Mee...
...Higgins v. O'Keeffe, 79 Fed., 900...
...See also N. Pac...
...Boyd v. Harris (Pa...
...3, Chapt...
...So much must be produced per man, per machine per hour, and the man knows if he falls below the minimum of production he will lose his job, and a job is a job even in this land of opportunity...
...p. 45...
...And always the process has gone on discriminating in favor of the strong and wealthy, and against the poor and weak...
...Priestley in his complaint stated...
...These principles, as applied by our courts have bred in some of the employing classes, a reckless and wanton disregard of the safety and lives of the employed, and has aroused in the latter a class hatred which is a constant menace to our society and government...
...Sullivan v. Fitchburg &c...
...So also a track inspector, whose negligent inspection of the track causes the train to fall through a bridge and kills the engineer is the fellow servant of the latter, and the railway company is not liable.22 Even the foreman of the laborers, with full power to hire and discharge and superintend the work is a fellow servant with them, when the latter are killed 7 Ferguson v. Central la...
...Improper ventilation of tunnels is a risk to be assumed by the workmen therein...
...Mobile &c...
...Fowler, loaded with meat, along the road in their work of supplying the customers...
...In fact, to allow this sort of an action to prevail would be an encouragement to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master to protect him against the misconduct or negligence of others who serve him...
...It would be easier to forget that the Constitution gives the Courts no power to invalidate acts of Congress if such power had been exercised solely to protect the people from harsh and unpopular measures...
...The process of thinking, always on the side of vested interests, of the established order, and of the powerful individuals and corporations continued through a century has built up a system of law barbarous in its injustice and inequality...
...Yet the converse of that sentiment fairly states the attitude of the Courts...
...So long as the judges confined themselves to dealing in general principles, and were always able to cite some previous case which seemed to excuse the decision in the case at hand, the public suspended judgment, and thought possibly the Courts were bound by precedents, and that they might be excused for adhering to the ancient and discredited rules of law...
...v. Charless, 162 U. S„ 359...
...I have seen strong men weep like children when they were out of work temporarily, and their families were forced to limited living...
...Cashman v. Chase, 156 Mass., 342...
...It is at this point that the issue between the people and the Courts has become clearly defined...
...The master, for example, would be liable to the servant for the negilgence of a chambermaid for putting him into a damp bed...
...35 Atl., 222...
...v. Hughes, 49 Miss...
...Lord Abinger, who wrote the opinion on the appeal, said: "It is admitted that there is no precedent for the present action by a servent against a master...
...Some judges are, of course, more reactionary than others, but the fact is that with a few great exceptions, the bench, as a whole, has shown itself not only out of sympathy with the new economic and industrial legislation of the country, but POSITIVELY HOSTILE TO IT...
...Davidson v. So...
...That England, wherein the doctrine of assumed risk and the fellow servant rule originated, long ago discarded both, seems to have meant nothing to our courts...
...Div., 383...
...12, page 43, proceedings of the Fourth Annual Meeting, January, 1911...
...23 N. Pac...
...If the master be liable to the servant in this action, the principle of that liability will be found to carry us to an alarming extent...
...The Judge, however, arrested the judgment, or, as we would say, set it aside...
...Publication No...
...That responsibility belongs exclusively to the employer...
...R. R. Co...
...Hope v. Scranton & Lehigh Coal Co., 120 A. D., 595...
...The manner in which the Courts come by the powers they exercise would excite less comment if the power itself had been used only for the public good...
...Co., 131 N. Y. 631...
...and in most of the cases in which danger may be incurred, if not all, he is just as likely to be acquainted with the probability and extent of it as the master...
...President Lincoln said:1 "Labor is prior to and independent of capital...
...American industry has been protected in every way possible by law and court decision, but the employees, the foundation of American industry, have been thrown aside as scrap, and their bruised and broken bodies added to the long roll of human wreckage to attest to the unrecompensed sacrifices made in its behalf...
...Berns v. Coal Co., 27 W. Va., 285...
...of injuries and deaths far which compensation is paid, is the answer, and the average amount paid is low...
...To be specific as to casualties as they occur in the engine, train, and yard service, is to say that one man was killed for each two hundred and five employed, and one was injured for every nine employed...
...and that in consequence of the defendant's neglect in each of his duties, the van gave way and broke down and the plaintiff was thrown to the ground," and his leg injured, etc...
...25 Nappa v. Erie Ry...
...Priestley, who was at the time riding on the cart, was thereby severely injured...
...Guilmartin v. Solvay Process Co., 189 N. Y., 490, 494...
...See also articles in Bench & Bar for April, 1908, 13 Bench & Bar, p. 17...
...Roe will deal with some of the decisions of the courts relating to labor unions, strikes and boycotts...
...Milligan v. Clayville Kn...
...Fowler in the Courts of England to recover damages for the injury to his leg...
...If it were generally believed that laws were improved by judicial amendment, the exercise by the Courts of the power to amend statutes might be regarded as less dangerous, but the belief that the acts of the Judiciary in amending statutes are almost always exercised in behalf of special interests and intended to defeat the popular will, adds bitterness to the publics condemnation of Judicial Legislation...
...Roe in the following article...
...The servant is not bound to risk his safety in the service of the master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself...
...v. McGill (Ariz...
...8 Hughes v. Winona & St...
...The same rule applies to women...
...In the foot note I set out a few of the many cases in addition to these already noted illustrating the extent to which the Courts have gone to break down this kind of legislation.25 Every state in the Union which has passed progressive labor legislation, such as the Factory Acts, looking to the protection of the lives and health of workers, and statutes changing the ancient rules of law relating to master and servant, which our Courts have applied to employers and employees, will furnish many other illustrations of judicial hostility to this kind of legislation...
...every large enterprise is baptized in the blood of its workmen...
...But our courts have taken the doctrine of that case, and made it control and decide cases differing from it in their facts as much as the simple butcher's cart, drawn by a horse to furnish meat to the countryside, differs from the modern ice-packed refrigerator car which traverses a continent in a few hours...
...Co., 53 Am...
...and Eng...
...The mere suggestion of a judge in one ease, not necessary to its decision, is seized upon and set forth as the law of the next...
...The Immortal Case of Fowler SINCE WHAT I am saying is a matter of record, and not of opinion, I will let the cases speak for themselves, using those which illustrate the condition of the law as applied, to employer and employee, or (to use the language of the books) master and servant...
...Ry., 161 Mass., 125...
...This question is discussed by Mr...
...If the employee has merely what the court calls "means of knowing the dangers involved" he is deemed to assume the risk of all such dangers and to have waived any claim against the Master for injuries resulting therefrom.13 Even statutes requiring dangerous machinery to be covered or guarded may be disobeyed by the employer and little children employed about such unguarded machinery are held to have assumed the risk...
...With this decision, there was born into the world of the English Law the twin propositions, first: that a servant employee must be held, when he enters the employ of another, to have assumed the risks of such employment, and second: that the master is not liable for damage to one servant or employee, caused by the negligence of a fellow servant or employee...
...This appears not to have been the case...
...The above statement, which is uniformly accepted as true, is the most serious of the charges against the Courts...
...Structural iron and steel workers and electrical workers stand a heavy loss in death and disability only to be guessed at in the total, for we lack full statistics covering these occupations...
...Baker v. Empire Wire Co., 102 A. D., 125...
...600, N. Y. laws of 1902...
...We are Ruled by "Precedent" THE DECISION of long ago has become the precedent for today...
...Lutz v. Atlantic &c...
...It has been estimated that annually four thousand Pennsylvania miners are killed or injured, and the records of Allegheny County, in which the great iron and steel industries of the Pittsburg district are located, showed ten thousand casualties a year, a large proportion of which were deaths or total disablements, and eighty per cent of which were inflicted upon men under forty years of age...
...every skyscraper is cemented with the blood and brawn of its builders...
...Proctor v. Ry...
...Capital is only the fruit of labor and could never have existed if labor had not existed first...
...The conductor on a train, and the foreman of a section crew are fellow servants for the purpose of preventing recovery by the latter against the company for injuries caused by the conductor's negligence.19 The fellow servant rule prevents recovery for the death of miners who are killed by the explosion of fire damp ignited by an employee but negligently and knowingly permitted by the owner of the mines to accumulate.20 The fireman on his locomotive is a fellow servant of a train despatcher, though they may be thousands of miles apart...
...That the defendant did not use proper care to see that the van (butcher's cart) was in a proper state of repairs, and was not overloaded...
...but it is reasonable to say that ten per cent...
...1861...
...Principles applied to the facts of one case are carried over and made to decide another case with very different facts...
...Co., v. State, 75 Md...
...No one can estimate the suffering, or count the army of the dead and crippled, born of these dogmas of a primitive industrial time...
...Warner v. Erie Ry., 39 N. Y., 468...
...Wealth has Advantages Before Courts WEALTH has certain legitimate advantages in litigation which cannot be overcome...
...DISCRIMINATION in favor of the wealthy and powerful classes is a grave charge to be laid at the door of our courts...
...Few of these casualties have hope of recovery because no one was at fault, Farwell v. Boston and Worcester R. R. Corporation, 4 Mete...
...He knows the inexorable rule...
...In a general way we realize what it means to the man who is left helpless and hopeless...
...This process has continued, until the complaint today is directed, not against the "bad law" of the erroneous decision, but against the "good law" of the correct decision...
...Ry., 69 Miss., 423...
...I quote from the recent report of the American Association for Labor Legislation, where, referring to the statistics of railway casualties compiled for the year 1910, it is said: "We find that nine men were killed each twenty-four hours, and that one was injured or killed every seven minutes...
...The Jury gave a verdict for the plaintiff for one hundred pounds...
...In New York it is necessary to constantly amend the labor statutes in order to keep up with the decisions of the courts...
...64 Mo., 112...
...Co., 137 App...
...Perigo v. C. R. &c Ry., 52 la., 276...
...Millsaps v. Louisville &c...
...THE POOR MAN is not on an equality with the rich one before the courts...
...cases, 478...
...And it is a story we should all ponder over.—EDITOR'S NOTE...
...We are therefore to decide the question upon the general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other...
...White v. Wittemann Lith...
...But it would seem that judges, mindful of this inherent inequality, would have sought by their rulings not to increase, even if they did not lessen, the already great advantage of the more powerful party...
...Quinlan v. Lackawanna Steel Co., 107 A. D., 176, aff'd 191 N. Y., 329...
...Ry., 15 R. I., 456...
...Co., 195 N. Y., 176, 184...
...In his next article, Mr...
...The laborer assumed the risk of the employment...
...and the others have been divided among a half dozen causes, few of which contained hope of recovery from the courts...
...OUR JUDICIAL OLIGARCHY SEVENTH ARTICLE:—WHY THE PEOPLE DISTRUST THE COURTS By GILBERT E. ROE ( Copyrighted 1911, The Robert m. La Follette Co...
...Similarly applying the fellow servant rule, the Courts declare that the mechanic in the shop, and the engineer on the engine are fellow servants, so that the latter cannot recover for injuries, if they are caused by the negligence of the former...
...All of them add to the burden of general human misery arising from suspended or decreased wages...
...Mass...
...P. Ry...
...What must it mean, then, to the one who in a moment knows he is done forever...
...R. R. Co., v. Peterson, 162 U. S., 346...
...English Employers' Liability Act of 1880, 43 and 44 Victoria, Chapt...
...Carl v. Bangor &c...
...Sisco v. L. & H. Ry., 145 N. Y., 296...
...He lets the cases themselves tell the story...
...I continue the quotation: "What do the railways pay...
...12 Balt...
...N. O. J. & G. N. R. R. Co...
...Co., 44 Fed., 476...
...Ry., 58 la., 293...
...H.) 30 Atl., 409...
...Well., p. 1. of his servant in the course of his employment to the best of his judgment, information and belief...
...Brown v. Maxwell, 6 Hill (New York), 592-594...
...One can, in a way, imagine the physical suffering which we believe can in part be compensated, but God alone knows the mental depths of despair to which the one time physically perfect man is plunged when disability overtakes and threatens his earning capacity, for in this day he knows when he cannot work he becomes a pauper...
Vol. 3 • July 1911 • No. 30
