The Lawyer's Corner: 1898 #2

Responses to Questions Of General Public Interest in the Year 1898

"A.W. of Utica" asks whether there is a liability of a railroad company to an employee for injuries sustained through the negligence of another employee. On this matter the original rule of law was that in no case could a recovery be had against a master separate and apart from his own negligence for any injury to a servant. The master was bound to provide safe appliances and also to exercise ordinary skill and care in selecting them. Having done this his responsibility as to all his servants in respect of personal injuries ceased unless there should be a subsequent perilous negligence on his part. This sweeping doctrine was based upon what is essentially a false foundation, namely, that a servant on entering an employment assumes all the ordinary risks incidental to or inherent in the employment, including the negligence of his co-servants. Now, it is true a servant does assume the risks of accident inherent in or incidental to the business and so does a passenger on a railroad train. But it is not true that negligence of another servant or of any one else is inherent in or incidental to any business whatever and so a servant no more assumes such risk by his mere act of entering the employment any more than a passenger assumes the risks of all negligence when he steps aboard a train. The foundation being false, the theory of law built upon it was necessarily unjust. And yet the courts at first all upheld both the false theory and the false foundation whereon it rested. But at length the injustice became so apparent that the courts began to hem in the application of the doctrine advanced some by one device, some by another, all tending, however, to the correction of the vicious principle which had been established. Thus the doctrine is now held extensively that where a servant is injured by the negligence of another who has authority over him and thus far stands in the stead of the master the injured servant may bold the master responsible for the negligence of the co-servant.

Then came in another theory relaxing the original rule still further, namely, that two persons in the employment of the same master, and in the same general line of service, are nevertheless not co-servants where they are engaged in different departments as, for instance, one in running trains and another in repairing the track or engines.

Some of the states still retain the original rule, false and unjust as it is. But most of them have modified it as noted above and among them New York. A few, as Iowa and Minnesota, have swept away the original rule by special statutes whereby the liability of corporations for injuries to servants rests on precisely the same grounds as the liability to others, no one is to be presumed to assume negligence. it is to be hoped that all states will follow these commendable examples.


"R.T., of Brooklyn," inquires also concerning a question of negligence, namely, whether a municipal corporation is liable for an injury arising from a defect in an alley, the same as for a like injury from a defect in a street. A public alley is nothing but a narrow street, and there can be no reason for making a distinction between such an alley and a street in regard to municipal liability. As a rule, however, such liability is rarely available, because there can be few instances where a person injured through a defect in a street or alley does not bring the injury on himself by such a degree of negligence as will take away the right of recovery.


"T.M." asks whether fraud does not prevent the statute of limitations from taking effect. A fraudulent concealment of the cause of action does so. whether in regard to personal claims or to titles of real estate. The statute does not begin to run until the fraud either is discovered or might be discovered by ordinary care such as a prudent man uses in his business affairs.


"A Widow" presents a distressing case, in which she can have no relief, involving a principle of law that ought to be universally known. The executor of her husband's estate defaulted with the proceeds of all his property and she procured judgment again the three sureties on the executor's bond. Two of these sureties were solvent and the other insolvent. The insolvent surety, wishing to go into a small business, secured from the widow for a nominal amount his release from liability under the judgment. This unfortunately released the other sureties who were solvent and "A Widow" has no recourse. The release of a co-obliger releases all, for the reason that it destroys the right of contribution as to the remaining co-obligers.



Website: The History
Article Name: The Lawyer's Corner: 1898 #2
Researcher/Transcriber Miriam Medina


The Brooklyn Daily Eagle January 23, 1898
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