The doctrine of Employers' Liability has generally been taught and known as the relation of Master and Servant, because it originated at a time when the relation and occupations were so simple that the service rendered made the employee a servant, yet to the layman today the term Master and Servant as used to express legal relation of liability is little understood, and soon the legal doctrine applicable to the relationship will be regarded as having become obsolete as well as its terminology.

The laws of liability, or better, non-liability of Master to Servant, were early established by judicial decisions.

So far as liability was discussed by Blackstone, it was, that the servant was liable to receive punishment or at least correction for his negligence. Little or no consideration had been given the Master's negligence as affecting the Servant, certainly no limitations had been engrafted on liability for negligence. It is to be noted, however, that the Master had been and was held liable for his servant's negligence to third parties even before and after Blackstone's time.

In 1837, more than half a century after Blackstone's death, the great case of Priestly v. Fowler, 3 M. & W. 1, was decided by the English Court of Exchequer, being the first recorded exception to the doctrine of respondeat superior. Of this case a distinguished text writer has commented: "It is not extravagant to say that this decision in its influence upon subsequent jurisprudence is second to no adjudication to be found in the reports. No other reported case has changed the current of decisions more radically than this."

So this case became the foundation of the present doctrines of fellow servant and assumption of risks.

The case was brought by a butcher's helper against his Master and alleged that he was directed to go with another servant to deliver goods in a van; that the van was overloaded and gave way, fracturing the plaintiff's thigh; and that it was the Master's duty that the van should be in a proper state of repair and should not be overloaded, both of which duties the defendant failed to perform.

There was a judgment in 100 pounds for plaintiff, and on motion for arrest of judgment, Lord Abinger, in sustaining the

motion after admitting that there was no precedent for the present action of a servant against the master, and that the question must be decided upon general principles, declared in the course of his opinion:

"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. He who is responsible by his general duty or by the terms of his contract for all the consequences of negligence in a matter in which he is the principal is responsible for the negligence of all his inferior agents. If the owner of his carriage is, therefore, responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coach maker or his harness maker or his coachman. The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him in a damp bed, for that of the upholsterer for sending in a crazy bedstead whereby he was made to fall down while asleep and injure himself. The inconvenience, not to say absurdity, of these consequences affords a sufficient argument of the application of this principle to the present case. But, in truth, the mere relation of master and servant never can imply an obligation on the part of the master to take more care of the servant, than he may reasonably be expected to do of himself." And he continued by declaring that no doubt the master should provide for the servant's safety to the best of his knowledge, information and belief, and that the servant was not bound to risk his safety in the service in which he apprehends injury to himself and in most cases in which there was danger, he was just as likely to be acquainted with the probability and extent of the danger as the master.

This reasoning is familiar to all of you, and when we reflect that it was adopted by Chief Justice Shaw in Massachusetts in 1842, in Farwell v. Boston, etc., R. R. Co, 4, Metcalf, 49, and later by the New York and other courts, and the same rule was laid down in South Carolina by Judge Evans in case of Murray v. South Carolina Railroad Company, 1 McMillan's Law 385 (the first case in this country), without having the case of Priestley v. Fowler before him, the soundness and reasonableness of the rule must be regarded as well founded. Yet the doctrine

has been criticised by eminent writers and has been modified by some States by statute.

It has also been suggested "that the law as to non-liability of master with regard to fellow-servants arose principally from the ingenuity of Lord Abinger, in suggesting analogies in Priestley v. Fowler."

It is open to doubt, however, whether this opinion would have made a lasting impression on our decisions or that Lord Abinger would have reached the same conclusion, if instead of the butcher's van, the man had been employed by one of the great manufacturing concerns of today, with all of its complex machinery, or by a railroad, with its numerous employees, where amidst the confusion and speed, however open and obvious the danger, because of human laxity, weariness and sickness many thousands of men are annually maimed and injured or killed. For a fearful toll of human life and limb is exacted as a necessary consequence of our strenuous or high-pressure industrial life, as much so, as if controlled by an inexorable law of nature.

The case of the butcher's boy began to be followed by our courts when the now powerful industrial concerns were in their infancy and when speed, as we know it, was hardly believable. For the change in speed of railroads and machinery is comparatively recent. About the time of Lord Abinger's decision an embryo railroad magnate from Virginia wrote home of a ride on a primitive steam coach and described his trip by saying: "I rode on a steam coach today; we went at the rate of ten miles an hour, just think of it, it almost took my breath away."

Even as late as 1878, in the Virginia case of Baltimore & Ohio R. R. Co. v. Whittington's Admr., 30 Gratt. 805, the Virginia Court of Appeals declared that it was the duty of the railroad company to give notice to an employee of a change of speed of an accommodation train of moderate rate of travel to what was described in that case as “a lightning express" train of the rate of travel of from twenty-five to thirty-five miles per hour. The opinion does not mention the speed of the accommodation train.

Regardless of the soundness of the principles laid down in these early cases, we have with them the beginning of the

fellow-servant rule, and the rule of assumption of risks, and if we add to these the rule of contributory negligence which has obtained in this country, and in England even longer, we have the three defenses which have been most potent in absolving the employer from liability.

These rules were based by the courts on a so-called implied contract between the employer and workman, which is simply saying that the employer and workman, having made no contract as to the hazard of the work, the law would imply such a

contract.

It is true that there have been made certain exceptions to the fellow-servant rule, such as a failure of the Master to perform one of the duties resting upon him, and a limitation on who is a fellow-servant, and there are certain duties imposed upon the Master such as to use reasonable care: (1) to provide a reasonably safe place to work; (2) to provide reasonably safe tools and appliances; (3) to provide reasonably competent servants to do the work; (4) to promulgate suitable rules for carrying on the work. In some States the defenses of the fellow-servant rule and assumption of risks have been abolished or modified as to certain classes of employment. Yet the servant has gained little consolation in case of accidents on account of the Master's liability and with the exception of comparatively few and small recoveries, liability has done little else than keep the master anxious lest some inadvertent act of negligence on his part should subject him to serious damages. Sometimes the modifications of the Common Law Rule have been embraced in Employers' Liability acts, which amounted to a codification of the common law, with certain restrictions on the defenses above referred to; and the defense of fellow-servant has been abrogated in some States, modified or abrogated in part in others; the doctrine of comparative negligence has been the rule in Georgia and Illinois, among others, and in the Federal Courts; likewise the burden of proof of contributory negligence has been shifted in some jurisdictions.

In Virginia the fellow-servant rule and rule of assumption of risks have been abrogated as to steam railroads.

What effect these modifications have produced in favor of