OUR JUDICIAL OLIGARCHY, (EIGHTH ARTICLE)
Roe, Gilbert E.
OUR JUDICIAL OLIGARCHY EIGHTH ARTICLE:—WHY THE PEOPLE DISTRUST THE COURTS By GILBERT E. ROE (Copyrighted 1911, The Robert M. La Follette Co.) Does the Laboring Man Get the Same Consideration as...
...15 id...
...This is the rule of contributory negligence, and when properly applied, between parties, on approximately equal terms, has much to be said in its favor...
...AKIN TO THE DOCTRINE of "assumed risk" and the "fellow servant rule" discussed in the last preceding article, is the doctrine of "contributory negligence...
...202 a. The above section is as follows: "On the trial of an action brought by an employee ©r his personal representative to recover damages for negligence arising out of and in the course of such employment, contributory negligence of the injured employee shall be a defense to so pleaded and proved by the defendant...
...How the Courts will deal with this statute remains to be seen...
...The rule of contributory negligence takes no account of the fact that most employees today do their work in the presence of the danger, on the one hand of being discharged if they take the time to be cautious, and on the other hand of being crippled or killed if they act with the haste necessary to secure the approval of their superiors...
...The judges themselves, through their written opinions, let you know where they stand...
...The rule is general, and is for the defense of the company...
...21 Employers Liability cases, 207 U. S., 463...
...Smith v. N. Y. C...
...While in England, on the other hand, the Legislature being free to act for the best interests of the people, according to its own judgment, promptly passed a statute which cut up the Taff Vale decision by the roots and entirely revolutionized the law of England upon the subject.16 Section 3 of the above mentioned statute provides: "An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment, or that it is an interference with the trade, business or employment of some other person, or with the right of some other person, to dispose of his capital or his labor as he wills...
...A recent rule promulgated by a leading Railway Company is as follows: "***employees before they attempt to make couplings or to uncouple, will examine and see that the cars and engines to be coupled or uncoupled, couplers, draw-heads and other appliances connected therewith, ties, rails, tracks and roadbeds, are in good safe condition...
...p. 43...
...Nevertheless, the decision was that no question was presented for a jury to pass upon, thus holding that reasonable and intelligent men could not differ as to what facts had been established or as to the inferences which could be drawn therefrom, and therefore, that the plaintiff, as a matter of law, was guilty of contributory negligence and could not recover...
...VI, c. 15...
...I am calling your attention to these matters with a view of invigorating energy and ambition, in order that your families, who are dependent on you to make a success, shall not some day point the finger of scorn at you, and that the public may not be able to say you lost your position due to the lack of energy and interest in your own personal welfare, for which you can consistently place the responsibility on no one but yourself...
...1 "Make Quick Moves" NOW NOTE the letter of instruction the superintendent in charge of the employees sends out for the actual direction of the men:2 "Entirely too much time is being lost, especially on local trains, due to the train and engine men not taking advantage of conditions in order to gain time doing work, switching and unloading and loading freight...
...In the argument of this case, Haldane, K. C, pointed out for the Society, the danger of the rule which the Court in fact adopted...
...The Trial Judge, however, under proper instructions, submitted the case to the jury, who returned a verdict for the plaintiff...
...Severe penalties were also inflicted upon persons who attended meetings held for the purpose of collecting money to advance the above purposes, and it was also made an offense to assist any man or men engaged in a strike...
...202 a. The above section is as follows: "On the trial of an action brought by an employee or his personal representative to recover damages for negligence arising out of and in the course of such employment, contributory negligence of the injured employee shall be a defense to se so pleaded and proved by the defendant...
...23 Edw...
...2 id...
...0 Amalgamated Society of Railway Servants v. Osborne, L. R. App...
...The logic of this decision seems to be that four judges of the Court of Appeals, must have held that the eight Judges,—three of the Court of Appeals, four of the Appellate Division, and the Trial judge— were not "reasonable and intelligent men," otherwise it would not have been possible to take the case from the jury...
...Co., 201 N. Y., 271...
...The history of this process through the centuries, interesting as it might be, is not involved in our present discussion, which is necessarily • Stephen's History of the Criminal Law of England, Vol...
...16 Trade Disputes Act, 1906, Sec...
...This and the statute passed the next year provided: "That every man and woman of what condition he be, free or bond, able in body and within the age of three score years, (if he have no means of his own) if he in convenient service, his estate considered, be required to serve, he shall be bounden to serve him which so shall him require...
...1, No...
...1 American Labor Legislation Review, Vol...
...In the following article, as in the article last week, the writer lets the cases, themselves tell the tale...
...I., 1, c. 13...
...2, n. 844...
...u 40 Geo...
...352 of the Laws of 1910 amending the Labor Law, Sec...
...Ill, p. 60...
...4 Chapt...
...In this respect it is only necessary to call your attention to the old adage, which is a true one, that when train or engine men do not make good on local trains, it thoroughly demonstrates those men are detrimental to the service, as well as their own personal interests, and such men, instead of being assigned to other runs, should be dispensed with...
...Cases, 1910, p. 87...
...The attitude of the judges toward working men is clearly manifested in the decisions involving the efforts of injured employees to recover damages...
...The letter is private, but the men soon learn that it is the spirit of the letter and not of the rule which must be obeyed, if they hold their jobs...
...A fundamental rule in the law of negligence in this State existing from the earliest times is abrogated...
...The principal defense of the City was that plaintiff was guilty of contributory negligence...
...Courts Against Working Classes THE COURTS, however, both in England and in this country, being far removed from popular control, have stubbornly contested every foot of the advance made by the working classes toward equality under the law...
...The courts, both in England and in this country," says Mr...
...See statutes of 1360, 1368, 1388...
...Markt v. Knight (1910) 2 K. B. 1021, 79 It J. K B 939...
...It was intended, of course, that a jury should always determine the question of fact, whether the plaintiff was guilty of contributory negligence or not...
...He said:15 "A trade union then is not a corporation nor an individual, nor a partnership...
...4 Chapt...
...v. Amalgamated Society of Railway Servants, L. R. App...
...1, No...
...s Whalen v. Citizen's Gas Light Co., 151 N. Y., 70...
...Cases, 1901, p. 426...
...Does the Laboring Man Get the Same Consideration as the Capitalist in Our Courts...
...Labor v. Capital in Court WE TURN NOW to another branch of the law which, in recent years, has been the subject of much controversy and one wherein the decisions of the Courts have aroused the hostility of a' large proportion of our people...
...5 Bench & Bar for August, 1910, p. 51...
...Section 5, Sub Division 3 of the Act Provides: "The expression 'trade dispute' means any dispute between employers and workmen or between workmen and workmen which is connected with the employment or non-employ14 Taff Vale Ry...
...A distinguished writer on the criminal law of England, concerning these statutes, said: "The main object of these statutes was to check the rise in wages consequent upon the great pestilence called the black death...
...importance that engine men be alive, prompt to take signals, and make quick moves...
...They must exercise great care in coupling and uncoupling cars...
...From the first "Statute of Labourers'8 passed in 1349, to the present time, the law has always discriminated, against > Vol...
...Then also, some of the states, for example, New York, require the plaintiff in an action for personal injuries, to prove that the victim of the injury was free from negligence at the time of the accident, for which damages were sought to be recovered.3 When, therefore, the unfortunate victim of the injury is dead, it often happens that no such proof can be furnished...
...St., 193...
...Mastin, above referred to, it appears that in 1910, he was injured on the streets of New York, by a vehicle under the control, and in the service of the City...
...p. 43...
...Bench & Bar for August, 1910, p. 51...
...20 Adair v. U. S., 208 U.S., 161...
...1, p. 42, issued by the American Association (or Labor Legislation...
...Conway v. Wade, L. R. Kings Bench Division, 1908, Vol...
...It is like a club, not a legal entity: and there are good reasons for this view...
...but they must number many hundreds...
...It sounds fair to say that an employee who, by his negligence, brings an injury upon himself, should not recover from his employer on account of such injury...
...The practical importance of the change is manifest...
...1, p. 42, issued by the American Association for Labor Legislation...
...I refer to the decisions relating to Labor Unions, and particularly contests between labor and capital as manifested in strikes, boycotts, lockouts and other aggressive and retaliatory tactics to which each side has resorted...
...An appeal was taken to the Appellate Division, where the judgment was affirmed, one judge dissenting...
...Durkin v. Kingston Coal Co., 171 Pa...
...352 of the Laws of 1910 amending the Labor Law, Sec...
...It is also of the utmost 1 American Labor Legislation Review, Vol...
...The most we could hope to do with a decision like the Taff Vale case, and there are many of them in this country, would be to slightly lessen its hardships by statutes so harmless that the Courts would permit them to stand...
...Note now the difference between the action of the law making branch of the English Government and our own in the same situation...
...It is important to note, however, that in monarchial England, where the hard statutes against labor had their origin, and where the decision of the Courts necessarily reflected the harshness of the statutory law, all has been changed by recent legislation...
...By many subsequent statutes, these provisions were re-enacted and others passed, even more stringent, and by which the hours of labor were fixed, in some instances from five A. M. to eight P. M. By these early statutes, laborers who left their work and went into another county were liable to be arrested by the Sheriff and brought back, and all alliances and unions between laborers were prohibited.10 In 1548 a more general statute was passed which forbade laborers to conspire "not to make or do their work, but at a certain price or rate" under penalty of loss of an ear and of being declared infamous.U In 1720 an act was passed declaring all agreements of various laborers "for advancing their wages or for lessening their usual hours of work" to be null and void, and imposing the penalty of imprisonment for entering into such agreements.12 As late as the year 1800 a statute was passedl3 which provided imprisonment with hard labor for the workman who "enters into any combination to obtain an advance of wages or lessen or alter the hours of work, * * * or who hinders any employer from employing any person as he thinks proper or who, being hired, refuses without any just or reasonable cause, to work w'th any other journeyman or workman employed or hired to work...
...p. 435...
...Roe, "being far removed from popular control, have stubbornly contested every foot of the advance made by the working classes toward equality under the law...
...22 Ives v. South Buffalo Ry...
...confined to those recent decisions, which go to make up or directly influence the existing body of the law on this subject...
...This case shows, better than any extended discussion qould do, the extent to which judges have gone in order to take questions of' negligence and contributory negligence from the jury and pass, on them themselves...
...That would be a great calamity and was surely not intended by the Legislature...
...While in this country, having borrowed from England the unintelligent and harsh principles of her early law, our Courts have thus far been able to prevent anything like the sweeping changes in the law affecting laborers which has taken place in England...
...In the case of Mr...
...In all cases, sufficient time must be taken to avoid accident or personal injury...
...THIS WEEK, Mr...
...The City then appealed to the Court of Appeals, which, by a vote of four to three, held that as a matter of law, the plaintiff was guilty of contributory negligence, and could not recover...
...It fixed the wages which any laborer might ask and receive, and punished with severe penalties any laborer who asked for more than the rate fixed by law, and any employer who paid more than the law provided for...
...The Courts were never backward in enforcing these statutes., but gradually, as the suffrage was extended, and the laboring classes came to have a voice and vote in matters of government, the old statutes were repealed and replaced by others less favorable to the employer...
...We ask you to read it carefully.—Editor's Note...
...Courts Usurp Duty of Jury ARECENT CASE illustrating the length to which the Courts have gone in usurping the function of the jury in dealing with the question of contributory negligence is that of Mastin v. City of New York.6 The difference between the province of the Court and Jury in this class of cases is recognized by all the authorities and is usually stated as follows: "When reasonable and intelligent men may differ as to what facts have been established or may draw antagonistic inferences from undisputed facts, the case is one for a jury...
...There is in the article that follows IMPORTANT INFORMATION for YOU...
...3, p 204...
...Reversed 78 L. J. K. B. 1025...
...The Court, however, determines the question of negligence, after the accident in the quiet and security of the Court Room, upon due deliberation, and with all the facts carefully brought out, and the judge can always feel sure, that no matter how hasty or how deliberate he may be in the matter, his job is secure...
...A familiar example of the progress of the English law relating to workmen is found in the celebrated Taff Vale case.14 In that case a strike having arisen in August, 1900, among the employees of the Taff Vale Railway who were organized into a society, but not a corporation, it was decided by the House of Lords that an injunction would issue against the society and all its members, also that the society could be sued and the money in its treasury, collected to pay benefits to widows and orphans could be used to pay any judgment for damages which the Railroad Company might recover as a result of the acts of the strikers...
...This early statute, in the reign of Edward III, the first one .upon the subject, grew out of the scarcity of labor resulting from the wars and pestilence of that period...
...After much agitation, this rule was changed by statute in New York, in 1910.4 Concerning this change in the law, the Editor of Bench & Bar recently said:5 3 Whalen v. Citizen's Gas Light Co., 151 N. Y., 70...
...It thus appears that the Trial judge, four judges in the Appellate Division, and three judges in the Court of Appeals, eight in all, agreed that the evidence presented a question of fact for the decision of a jury, and one judge in the Appellate Division and four in the Court of Appeals, five in all, held the contrary...
...H R. R. R. Co., 177 N. T., 224, 229...
...u 7 Geo...
...Neither must they wait until the train stops to get men in position...
...Roe gives us some more cases bearing upon the charge that our courts discriminate in favor of the rich and powerful classes...
...As a money saving device, to employers, this rule is almost equal in value to the "assumed risk" and "fellow servant" rule just discussed and its justice seems more apparent...
...The rule, however, as actually applied in practice, has become one of great hardship because the judges have come to determine the question of negligence to a large extent, thus really exercising the function of the jury, and the alternative often presented to an employee of losing his job or doing an act which can be called negligent, deprives the parties of that substantial equality which is necessary to any fair application of the rule...
...If the society can be sued as such, the funds intended for the benefit of widows and orphans can be reached and perhaps exhausted in consequence of improper and illegal acts of the society's officers...
...N. T.( p. 81...
...2 and 3 Edw...
...those engaged in manual labor, or what we now call the "working classes...
...The Court, however, decided in all respects in favor of the contentions of the Railway Company and issued an injunction against the society and its members forbidding picketing and interference with the railway company and its strike breakers, which reads very much like many of our own Federal Court injunctions issued in similar cases...
...The number of negligence actions which have failed through inability of the plaintiff to give evidence of his, or his decedent's freedom from contributory negligence can only be conjectured...
Vol. 3 • August 1911 • No. 31
